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THE ADMINISTRATION’S USE OF 

FISA AUTHORITIES 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

JULY 17, 2013 

Serial No. 113–45 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 
(II) 

COMMITTEE ON THE JUDICIARY 

BOB GOODLATTE, Virginia, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

STEVE CHABOT, Ohio 

SPENCER BACHUS, Alabama 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

MARK AMODEI, Nevada 

RAUL LABRADOR, Idaho 

BLAKE FARENTHOLD, Texas 

GEORGE HOLDING, North Carolina 

DOUG COLLINS, Georgia 

RON DeSANTIS, Florida 

JASON T. SMITH, Missouri 

JOHN CONYERS, JR., Michigan 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

SUZAN DelBENE, Washington 

JOE GARCIA, Florida 

HAKEEM JEFFRIES, New York 

SHELLEY HUSBAND, Chief of Staff & General Counsel 

PERRY APELBAUM, Minority Staff Director & Chief Counsel 
(III) 

C O N T E N T S 

JULY 17, 2013 

Page 

OPENING STATEMENTS 

The Honorable Bob Goodlatte, a Representative in Congress from the State 

of Virginia, and Chairman, Committee on the Judiciary ................................. 1 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 3 

WITNESSES 

James Cole, United States Department of Justice 

Oral Testimony ..................................................................................................... 6 

Robert S. Litt, Office of Director of National Intelligence 

Oral Testimony ..................................................................................................... 8 

John C. Inglis, National Security Agency 

Oral Testimony ..................................................................................................... 9 

Stephanie Douglas, FBI National Security Branch 

Oral Testimony ..................................................................................................... 12 

Stewart A. Baker, Steptoe & Johnson, LLP 

Oral Testimony ..................................................................................................... 67 

Prepared Statement ............................................................................................. 69 

Jameel Jaffer, American Civil Liberties Union (ACLU) 

Oral Testimony ..................................................................................................... 84 

Prepared Statement ............................................................................................. 86 

Steven G. Bradbury, Dechert, LLP 

Oral Testimony ..................................................................................................... 102 

Prepared Statement ............................................................................................. 104 

Kate Martin, Center for National Security Studies 

Oral Testimony ..................................................................................................... 110 

Prepared Statement ............................................................................................. 112 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Material submitted by the Honorable F. James Sensenbrenner, Jr., a Representative in Congress from the State of Michigan, and Member, Committee on the Judiciary ........................................................................................ 18 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Questions for the Record submitted to James Cole, United States Department 

of Justice; Robert S. Litt, Office of Director of National Intelligence; John 

C. Inglis, National Security Agency; and Stephanie Douglas, FBI National 

Security Branch .................................................................................................... 136 

Response to Questions from the Hearing from Stewart A. Baker, Steptoe 

& Johnson, LLP .................................................................................................... 138 

Response to Questions for the Record from Jameel Jaffer, American Civil 

Liberties Union (ACLU) ...................................................................................... 139 

Response to Questions from the Hearing and for the Record from Kate Martin, Center for National Security Studies .......................................................... 141 

(1) 

THE ADMINISTRATION’S USE OF 

FISA AUTHORITIES 

WEDNESDAY, JULY 17, 2013 

HOUSE OF REPRESENTATIVES

COMMITTEE ON THE JUDICIARY

Washington, DC. 

The Committee met, pursuant to call, at 10:11 a.m., in room 

2141, Rayburn House Office Building, the Honorable Bob Goodlatte 

(Chairman of the Committee) presiding. 

Present: Representatives Goodlatte, Sensenbrenner, Coble, Smith 

of Texas, Chabot, Bachus, Forbes, King, Gohmert, Poe, Chaffetz, 

Gowdy, Labrador, Farenthold, Holding, Collins, DeSantis, Conyers, 

Nadler, Scott, Lofgren, Jackson Lee, Cohen, Johnson, Chu, Deutch, 

DelBene, Garcia, and Jeffries. 

Staff Present: (Majority) Shelley Husband, Chief of Staff & General Counsel; Branden Ritchie, Deputy Chief of Staff & Chief Counsel; Allison Halataei, Parliamentarian & General Counsel; Caroline 

Lynch, ; Sam Ramer, Majority Counsel; Kelsey Deterding, Clerk; 

(Minority) Perry Apelbaum, Minority Staff Director & Chief Counsel; Danielle Brown, Parliamentarian; and Aaron Hiller, Counsel. 

Mr. GOODLATTE. Good morning. The Judiciary Committee will 

come to order. And without objection, the Chair is authorized to declare recesses of the Committee at any time. 

We welcome everyone to this morning’s hearing on oversight of 

the Administration’s use of FISA Authorities, and I will begin by 

recognizing myself for an opening statement. 

Today’s hearing will examine the statutory authorities that govern certain programs operated under the Foreign Intelligence Surveillance Act, or FISA. Since the unauthorized public release of 

these programs, many Members of Congress and their constituents 

have expressed concern about how these programs are operated 

and whether they pose a threat to Americans’ civil liberties and 

privacy. We have assembled two panels of witnesses today to help 

us explore these important issues. 

Last month, Edward Snowden, an unknown former NSA contractor and CIA employee, released classified material on top secret 

NSA data collection programs. On June 5th, the Guardian released 

a classified order issued by the Foreign Intelligence Surveillance 

Court requested by the FBI to compel the ongoing production for 

a 3-month period of call detail records, or telephony metadata. Telephony metadata includes the numbers of both parties on a call, 

unique identifiers, and the time and duration of all calls. 
2 

On June 6th, classified information regarding a second program, 

the PRISM program, was reported by the Guardian and the Washington Post. News reports described the program as allowing the 

NSA to obtain data from electronic service providers on customers 

who reside outside the United States, including email, chat, photos, 

videos, stored data, and file transfers. 

Both of these programs are operated pursuant to statutory provisions in FISA or the FISA Amendments Act. FISA was enacted to 

provide procedures for the domestic collection of foreign intelligence. When FISA was originally enacted in 1978, America was 

largely concerned with collecting intelligence from foreign nations, 

such as the Soviet Union, or terrorist groups like the FARC in Colombia. FISA set forth procedures for how the Government can 

gather foreign intelligence inside the United States about foreign 

powers and their agents. 

The intelligence landscape has changed dramatically over the 

last 30 years. Today, we are confronted with ongoing threats from 

terrorist organizations, some of which are well structured, but most 

of which are loosely organized, as well as threats from individuals 

who may subscribe to certain beliefs but do not belong to a specific 

terrorist group. The FISA business record provision, often referred 

to as Section 215 of the PATRIOT Act, allows the FBI to access 

tangible items, including business records in foreign intelligence, 

international terrorism, and clandestine intelligence investigations. 

Unlike grand jury or administrative subpoenas in criminal investigations, which can simply be issued by a prosecutor, a FISA business records order must first be approved by a Federal judge. Similar to grand jury or administrative subpoenas, a FISA business 

record order cannot be used to search a person’s home, to acquire 

the content of emails, or listen to telephone calls. It can only be 

used to obtain third-party records. 

Critics of the metadata program object to its breadth, namely the 

ongoing collection of all customers’ telephony metadata, and question whether this program conforms to Congress’ intent in enacting 

Section 215 of the PATRIOT Act. I hope to hear from today’s witnesses about this, about how the collection of this metadata is relevant to a foreign intelligence or terrorism investigation and about 

whether a program of this size is valuable and cost effective in detecting and preventing terrorist plots. 

In the 40 years since FISA enactment, communications technologies have changed dramatically and revolutionized the transmission of international communications. The shift from wireless 

satellite communications to fiber optic wire communications altered 

the manner in which foreign communications are transmitted. 

The use of wire technology inside the United States to transmit 

a telephone call that takes place overseas had the unintended result of requiring the Government to obtain an individualized FISA 

court order to monitor foreign communications by non-U.S. persons. 

Congress enacted in 2008 and reauthorized just last year the bipartisan FISA Amendments Act to update our foreign intelligence 

laws. 

The FAA permits the Attorney General and the Director of National Intelligence to target foreign persons reasonably believed to 

be located outside the United States to acquire foreign intelligence 
3 

information. The act requires for the first time in U.S. history prior 

court approval of all Government surveillance using these authorities, including court approval of the Government’s targeting and 

minimization procedures. 

The PRISM program derives its authority from Section 702 of the 

FAA. It involves the collection of foreign intelligence information 

about non-U.S. persons located outside the United States. To the 

extent the program captures information pertaining to U.S. citizens, such interception can only be incidental, and the handling of 

such information is governed by court-approved minimization procedures. 

I look forward to hearing from our witnesses today in greater detail about how the Government limits its targeting under 702 to 

non-U.S. persons outside the U.S. and a description of the oversight performed by the Administration and the FISC of this program, including the effectiveness of the current auditing of Section 

702. 

The terrorist threat is real and ongoing. The Boston bombing reminded us all of that. I am confident that everyone in this room 

wishes that tragedy could have been prevented. We cannot prevent 

terrorist attacks unless we can first identify and then intercept the 

terrorist. 

However, Congress must ensure that the laws we have enacted 

are executed in a manner that is consistent with congressional intent and that protects both our national security and our civil liberties. We must ensure that America’s intelligence gathering system has the trust of the American people. 

It is now my pleasure to recognize the Ranking Member of the 

full Committee, the gentleman from Michigan, Mr. Conyers, for his 

opening statement. 

Mr. CONYERS. Thank you, Chairman Goodlatte and Members of 

the Committee. 

We are on Judiciary, which is the Committee of primary jurisdiction for both of the authorities we are here to discuss today, Section 215 of the PATRIOT Act and Section 702 of the FISA Amendments Act. Over the past decade, the Members of this Committee 

have vigorously debated the proper balance between our safety and 

our constitutional right to privacy. 

And so, I join in welcoming the two panels—four each, very fairly 

made up—to this discussion today. I think it is an important one. 

But we never at any point during this debate have approved the 

type of unchecked sweeping surveillance of United States citizens 

employed by our Government in the name of fighting the war on 

terrorism. Section 215 authorizes the Government to obtain certain 

business records only if it can show to the FISA court that the 

records are relevant to an ongoing national security investigation. 

Now what we think we have here is a situation in which if the 

Government cannot provide a clear public explanation for how its 

program is consistent with the statute, then it must stop collecting 

this information immediately. And so, this metadata problem to me 

has gotten quite far out of hand, even given the seriousness of the 

problems that surround it and created its need. 

Now I have another concern that pertains to the Administration’s 

track record of responding to the criticisms of these programs. We 
4 

know Director Clapper’s misstatements and others. National Security Agency Director General Keith Alexander had to make retractions. Even FBI Director Robert Mueller is not empowered to rewrite history. 

But what we have is our conversation, which requires focusing 

on improving both more public scrutiny and congressional oversight 

of these programs. Over the last few weeks, the Administration has 

asserted that its conduct of this surveillance with congressional 

support because they have briefed some Members of these programs in the past. But that is not sufficient since we are in a 

catch-22 situation in a classified briefing in a secure setting, and 

we cannot discuss it publicly, certainly not even with our constituents. But if we skip the briefing, we risk being uninformed and unprepared. 

One simple solution to this problem would be to publicly release 

significant FISA court opinions or, at the very least, unclassified 

summaries of these opinions. This solution would have the added 

benefit of subjecting the Government’s legal claims to much-needed 

public scrutiny. 

Over the past decade, the court has developed a body of law that 

instructs the Government about what it may do with the information it collects. There is no legitimate reason to keep this legal 

analysis from public interest any longer. And if we are to strike the 

right balance with these surveillance authorities, which I think is 

an important purpose of the hearing today, then we must bring the 

public into the conversation as soon as it is appropriate and without delay. 

And I am not talking about releasing any classified information. 

Instead of simply asking our constituents to trust us, I am asking 

you and the executive branch to trust them. And the need for more 

declassification I think is very dominant, in my opinion, as to how 

we should move this today. 

And I thank the Chair. 

Mr. GOODLATTE. I thank the Ranking Member for his comments 

and would say in regard I share his concern about some classified 

information that does not need to be classified. 

I also would say that because of the nature of the questions that 

we would like to ask, some of which cannot be asked or answered 

here in an open hearing, we will definitely be planning a second 

hearing on this subject, where we can ask those questions in a classified setting to, again, assure ourselves of the answers that we 

need. 

Before we begin with questions for our witnesses, I want to 

stress that the—oh, first of all, without objection, all our Members’ 

opening statements will be made a part of the record. 

Before we begin with questions for our witnesses, I must stress 

that the programs this hearing is addressing remain classified. I 

expect the witnesses appearing before us today, particularly on our 

first panel, to answer questions from Members with as much candor as possible, given the unclassified setting. 

But I also wish to caution Members of the Committee that they 

should be cognizant of this unique dynamic when phrasing their 

questions. The simple fact that certain programs have been leaked 

does not mean that they have been declassified, and Members and 
5 

witnesses alike would be violating the law were they to disclose 

classified information during this hearing. 

I would also like to note that the Committee intends to hold a 

subsequent classified briefing for Members so that we have an opportunity to more closely examine those programs and pose questions to our witnesses that are not appropriate in this open setting. 

We welcome our first panel today. And if you would all please 

rise, we will begin by swearing in the witnesses. 

[Witnesses sworn.] 

Mr. GOODLATTE. Thank you very much. 

Let the record reflect that all of the witnesses responded in the 

affirmative, and we will now proceed to introduce our witnesses. 

Our first witness is Mr. James Cole, the Deputy Attorney General of the United States at the Department of Justice. Mr. Cole 

first joined the agency in 1979 as part of the Attorney General’s 

Honors Program and served the department for 13 years as a trial 

lawyer in the Criminal Division. 

He entered private practice in 1992 and was a partner at Bryan 

Cave, LLP, from 1995 to 2010, specializing in white-collar defense. 

Mr. Cole has also served as chair of the American Bar Association 

White Collar Crime Committee and as chair-elect of the ABA 

Criminal Justice Section. 

Mr. Cole received his bachelor’s degree from the University of 

Colorado and his juris doctor from the University of California at 

Hastings. We are fortunate to have him and his expertise with us 

today. 

Our second witness is Mr. Robert S. Litt, the second general 

counsel of the Office of the Director of National Intelligence. Previously, Mr. Litt was a partner at Arnold & Porter, LLP, and 

served as a member of the Advisory Committee to the Standing 

Committee on Law and National Security at the American Bar Association. From 1994 to 1999, he served as Deputy Assistant Attorney General at the U.S. Department of Justice, where he worked 

on issues of national security, including FISA applications. 

He began his legal career as a clerk for Judge Edward Weinfeld 

of the Southern District of New York and Justice Potter Stewart 

of the United States Supreme Court. Mr. Litt earned his bachelor’s 

degree from Harvard University and his law degree from Yale. We 

welcome his experience and expertise. 

The third member of our first witness panel is Mr. John C. Inglis, the Deputy Director and senior civilian leader of the National 

Security Agency, acting as the agency’s Chief of Operations. Mr. 

Inglis began his career at NSA as a computer scientist within the 

National Computer Security Center. 

Promoted to NSA’s Senior Executive Service in 1997, he subsequently served in a variety of senior leadership assignments and 

twice served away from NSA headquarters, first as a visiting professor of computer science at the United States Military Academy 

and later as the U.S. special liaison to the United Kingdom. 

Mr. Inglis is a graduate of the United States Air Force Academy, 

subsequently completing 9 years of active service and 21 years as 

a member of the Air National Guard. He holds advanced degrees 

in engineering and computer science from Columbia University, 
6 

Johns Hopkins University, and the George Washington University. 

And we thank him for joining us and sharing his expertise as well. 

And finally on the first panel, Ms. Stephanie Douglas, Executive 

Assistant Director of National Security Branch of the Federal Bureau of Investigations. Ms. Douglas began as a special agent with 

the FBI in November 1989. She first reported to the Washington 

Field Office, where she worked violent crime, public corruption, 

and national security matters. 

Before returning to the FBI headquarters in 2007, she served as 

an FBI detailee to the CIA’s Counterintelligence Center, as well as 

supervisory special agent for a counterintelligence squad at the 

Washington Field Office, directing sensitive national security investigations. Before assuming her current post, Ms. Douglas was special agent-in-charge of the San Francisco Division. 

Ms. Douglas earned her bachelor’s degree in history at the University of Tennessee, and we are pleased to have her share her expertise with us today as well. 

We thank all of you for joining us, and we will turn first to Mr. 

Cole for his testimony. 

TESTIMONY OF JAMES COLE, 

UNITED STATES DEPARTMENT OF JUSTICE 

Mr. COLE. Thank you, Mr. Chairman, Mr. Ranking Member, and 

Members of the Committee, for inviting us here to speak about the 

215 business records program and Section 702 of FISA. 

With these programs and other intelligence activities, we are 

constantly seeking to achieve the right balance between the protection of national security and the protection of privacy and civil liberties. We believe these two programs have achieved the right balance. 

First of all, both programs are conducted under laws passed by 

Congress. Neither is a program that has been hidden away or off 

the books. In fact, all three branches of Government play a significant role in the oversight of these programs. 

The judiciary, through the Foreign Intelligence Surveillance 

Court, plays a role in authorizing the programs and overseeing 

compliance. The executive branch conducts extensive internal reviews to ensure compliance. And Congress passes the laws and 

oversees our implementation of those laws and determines whether 

or not the current law should be reauthorized and in what form. 

I would like to explain in more detail how this works with respect 

to each of the two programs. 

The 215 program, as many of you have already heard, involves 

the collection of metadata from telephone calls. These are telephone records maintained by the phone companies. 

They include the number that was dialed, the date and time of 

the call, and the length of the call. They do not include names or 

other personal identifying information. They do not include cell site 

or other location information, and they do not include the content 

of any phone calls. 

These are the kinds of records that under longstanding Supreme 

Court precedent are not protected by the Fourth Amendment. The 

short court order that you have seen published in the newspapers 

only allows the Government to acquire these phone records. It does 
7 

not allow the Government to access or use them. That is covered 

by another, more detailed court order. 

That court order provides that the Government can only search 

the data if it has a reasonable, articulable suspicion that the phone 

number being searched is associated with certain terrorist organizations. Deputy Director Inglis will explain in more detail how this 

process works. 

But suffice it to say that there are many restrictions imposed on 

NSA to ensure that only properly trained analysts may access the 

data and that they can only access it with reasonable, articulable 

suspicion as a predicate and when it has been met and documented. The documentation of the analysts’ justification is important. It exists so that it can be reviewed by supervisors before the 

search is done and audited afterwards to ensure compliance with 

the court’s orders. 

In the criminal context, the Government could obtain these types 

of records with a grand jury subpoena without going to court. But 

here, we go to court every 90 days to seek the court’s authorization 

to collect the records. As part of the renewal process, we inform the 

court whether there have been any compliance problems. And if 

there have been, the court will take a very hard look and make 

sure we have corrected these problems. 

As we have explained before, the 11 judges on the FISA court are 

far from rubber stamps. Instead, they review all of our pleadings 

thoroughly. They question us, and they don’t sign off until they are 

satisfied that we have met all statutory and constitutional requirements. 

The 702 program is different. Under that program, the Government does collect content of communications. Under 702, the Government applies to the FISA court for an order allowing it to collect 

the communications of non-U.S. persons reasonably believed to be 

overseas. This order lasts for 1 year. 

The statute does not allow us to collect—or excuse me, does allow 

us to collect—communications even if the person on the other end 

of that phone call or email is in the United States or a U.S. person, 

but only if that is the result of a non-U.S. person outside the 

United States having initiated the call. 

Importantly, the statute explicitly prohibits us from what is 

known as ‘‘reverse targeting.’’ We can’t use Section 702 indirectly 

to obtain the communications of U.S. persons anywhere or any persons located in the United States by targeting a non-U.S. person 

overseas. 

Moreover, all U.S. person information collected is subject to what 

we call minimization rules. These rules are designed to restrict the 

dissemination, the use, and the retention of the information about 

U.S. persons collected. These rules are reviewed and approved by 

the court every year to ensure that we are handling U.S. person 

information in a manner consistent with the statute and the 

Fourth Amendment. 

Both programs involve significant oversight by all three branches 

of Government. The FISA court reviews and approves the certifications and the Government’s targeting and minimization rules, 

and it oversees the Government’s compliance with these rules, the 

statute, and the Fourth Amendment. 
8 

Within the executive branch, multiple parts of the Government— 

NSA, its Inspector General, the Office of the Director of National 

Intelligence, and the Department of Justice—conduct robust compliance reviews and provide extensive reports on implementation 

and compliance to the FISA court and to the Intelligence and Judiciary Committees. 

And Congress conducts oversight, decides whether to reauthorize 

the 702 authority, as it did in 2012 and as it did with 215 authority 

in 2011. 

We take very seriously our responsibility to the American people 

to implement these programs in a manner that complies with all 

laws and the Constitution and strikes the right balance between 

protecting their safety and their privacy. I know others on the 

panel have brief statements to make, and then we are all ready to 

answer any questions you may have. 

Thank you. 

Mr. GOODLATTE. Thank you, Mr. Cole. 

Mr. Litt, welcome. 

TESTIMONY OF ROBERT S. LITT, 

OFFICE OF DIRECTOR OF NATIONAL INTELLIGENCE 

Mr. LITT. Thank you, Mr. Chairman, Mr. Ranking Member. 

We appreciate your having this hearing. We think it is very important to correct some of the misimpressions that have been created about these activities, which, as the Deputy Attorney General 

explained, are entirely lawful and appropriate for protecting the 

Nation. 

In my opening statement, I would like to make three related 

points about the Foreign Intelligence Surveillance Court. The first 

is that the activity that this court regulates, which is the acquisition of foreign intelligence for national security purposes, was historically outside of all judicial supervision. In fact, courts have held 

that the Fourth Amendment does not require a warrant at all for 

the conduct of surveillance for foreign intelligence purposes. 

FISA was passed in 1978 and at that time established for the 

first time a requirement that we get a judicial order in order to 

conduct certain kinds of foreign intelligence or counterintelligence 

activities within the United States. But at the time FISA was 

passed, it was clear that the Congress did not intend that FISA 

would cover electronic surveillance directed at non-U.S. persons 

outside of the United States for foreign intelligence purposes. 

And as you noted in your opening statement, because of technological changes in the way international communications are carried, over time more and more such surveillance—that is to say foreign intelligence surveillance directed at non-U.S. persons outside 

of the United States—more and more of that began to fall within 

the technical definitions that required FISA court approval, even 

though that was not what Congress had intended. 

So, in the FISA Amendments Act, Congress set up the procedure 

of Section 702, which the Deputy Attorney General described, to 

provide a degree of judicial supervision over some kinds of foreign 

intelligence surveillance of foreigners outside the United States. 
9 

Properly viewed then, Section 702 is not a derogation of the authority of the FISA court, but an extension of the court’s authority over 

a type of surveillance that Congress originally had not intended 

would be subject to the court at all. 

The extent to which this Nation involves the courts in foreign intelligence surveillance goes well beyond what is required by the 

Fourth Amendment and I think beyond what other countries require of their intelligence services. 

The second point I want to make is to forcefully rebut the notion 

that some have advanced that the FISA court is a rubber stamp. 

It is true that the court approves the vast majority of applications 

that the Government presents to it. But that does not reflect any 

lack of independence or lack of care on the part of the court. 

Quite the contrary, the judges of the court and their full-time 

professional staff review each application carefully, ask questions, 

and can request changes or limitations. And an application is not 

signed unless and until the judge is satisfied that the application 

complies with the statute and the Fourth Amendment. 

And these are some of the best and most experienced Federal 

judges in the country, and they take seriously their twin obligations to protect national security and to protect individual rights. 

Finally, we agree with the Ranking Member and the Chairman 

that we should strive for the maximum possible transparency 

about the activities of the court, consistent with the need to protect 

sensitive sources and methods. We have been working for some 

time to declassify the court’s opinions to the extent possible. 

But legal discussions and court opinions don’t take place in a 

vacuum. They derive from the facts of the particular case. And I 

want to quote here from Judge Walton, who is now chief judge of 

the FISA court, who said in a letter to the Senate Intelligence 

Committee. 

‘‘Most FISC opinions rest heavily on the facts presented in the 

particular matter before the court. Thus, in most cases, the facts 

and legal analysis are so inextricably intertwined that excising the 

classified information from the FISC’s analysis would result in a 

remnant void of much or any useful meaning.’’ 

That is an excellent and pithy summary of the challenge we face 

in trying to declassify these opinions. Of course, as you know, we 

do provide copies of all significant opinions of the FISC to the Judiciary and the Intelligence Committees of both houses. And I can 

tell you that in light of the recent disclosures, we are redoubling 

our efforts to try to provide meaningful public insight into the rulings of the FISA court, again to the extent we can do that consistent with the need to protect our intelligence activities. 

With that, Mr. Chairman, I am glad to answer any questions 

that you have. 

Thank you. 

Mr. GOODLATTE. Thank you, Mr. Litt. 

Mr. Inglis, welcome. 

TESTIMONY OF JOHN C. INGLIS, NATIONAL SECURITY AGENCY 

Mr. INGLIS. Good morning, sir. 
10 

Mr. Chairman, Mr. Ranking Member, Members of the Committee, thank you for the opportunity to join with my colleagues 

here today from the executive branch to brief and discuss with the 

Committee issues that you have identified in your opening remarks. I am privileged today to represent the work of thousands 

of NSA, intelligence community, and law enforcement personnel 

who employ the authorities provided by the combined efforts of the 

Congress, Federal courts, and the executive branch. 

For its part, NSA is necessarily focused on the generation of foreign intelligence. But we have worked hard and long with counterparts across the U.S. Government and our allies to ensure that we 

discover and connect the dots, exercising only those authorities explicitly granted to us and taking care at once to ensure the protection of civil liberties and privacy. 

In my opening remarks, I would like to briefly review the two 

NSA programs leaked to the media a little more than a month ago, 

their purpose, and the controls imposed on their use—the so-called 

215 program authorizing the collection of telephone metadata and 

the so-called PRISM program authorized under Section 702 of the 

Foreign Intelligence Surveillance Act Amendment. 

Let me first say that these programs are distinguished, but complementary tools with distinct purposes in oversight mechanisms. 

Neither of the programs was intended to stand alone, delivering 

singular results that tells the whole story about a particular threat 

to our Nation or its allies. 

Useful intelligence, the kind decision-makers should use as the 

foundation of thoughtful action, is usually the product of many 

leads—some of which focus and sharpen the collection of additional 

data, some of which help connect and make sense of that data, and 

the sum of which is intended to yield the decisive and actionable 

conclusions that enable timely and precise employment of traditional instruments of national power, such as law enforcement and 

diplomacy. 

The first program, which we undertake under Section 215 of the 

PATRIOT Act, as you heard described earlier today, authorizes the 

collection of telephone metadata only. It does not allow the Government to listen to anyone’s phone calls. 

The program was specifically developed to allow the U.S. Government to detect communications between terrorists who are operating outside the United States and who are communicating with 

potential operatives inside the United States, a gap highlighted by 

the attacks of 9/11. In a phrase, this program is designed and solely focused on the seam between foreign terrorist organizations and 

the U.S. homeland. 

However useful the data might be that is acquired under this 

program for other purposes, its use for any other purpose is prohibited. The metadata acquired and stored under this program may be 

queried only when there is a reasonable, articulable suspicion, one 

that you can describe and write down, based on specific facts that 

a selector, which is typically a phone number, is associated with a 

specific foreign terrorist organization. 

During 2012, we only initiated searches for information in this 

dataset using fewer than 300 unique identifiers. The information 
11 

returned from these searches only included phone numbers, not the 

content, the identity, or location of the called or calling party. 

Under rules approved by the court, only 22 people at NSA are 

allowed to approve the selectors used to initiate the search in this 

database. All queries are audited. Only 7 positions at NSA, a total 

of 11 people, are authorized to release the query results believed 

to be associated with persons in the United States. 

Reports are filed with the court every 30 days that specify the 

number of selectors that have been approved and the disseminations made to the FBI of reports that contain numbers believed to 

be in the U.S. 

The Department of Justice conducts onsite review of the program 

every 90 days. The executive branch, the Department of Justice, reports to the court and the Congress on renewal orders every 90 

days, with an update on types of records sought, received, or denied 

on an annual basis. 

The second program, which we operate under Section 702 of the 

FISA—the Foreign Intelligence Surveillance Act—authorizes the 

collection of communications for the purpose of foreign intelligence 

with the compelled assistance of electronic communications service 

providers, sometimes called telecommunications providers. Under 

this authority, NSA can collect communications for foreign intelligence purposes only when the person who is the target of our collection is a foreigner who is at that moment outside the United 

States. 

As you have heard earlier, we cannot use this authority to intentionally target any U.S. citizen or other U.S. person, any person 

known to be in the United States, a person outside the United 

States if our purpose in targeting that person is to acquire information from a person inside the United States. This program has been 

key to our counterterrorism efforts. More than 90 percent of information to support the 50 disruptions that you will hear my colleague from the FBI briefly describe came from Section 702 authorities. 

A bit more about oversight. The oversight on these programs operates under controls both internal and external to NSA, including 

actions taken by the Department of Justice, the Office of the Director of National Intelligence. There are regular onsite inspections 

and audits. There are semi-annual reports provided to the Congress and the Foreign Intelligence Surveillance Court. 

The men and women at NSA are not simply committed to compliance with the law and the protection of privacy and civil liberties, 

but they are actively trained and must be held accountable to 

standards for that performance. This is also true of contractors. 

The actions of one contractor should not tarnish all contractors because they also do great work for our Nation. 

In concluding, I would note that our primary responsibility at the 

National Security Agency—not alone, but across the Federal Government—is to defend the Nation. These programs are a core part 

of those efforts. We use them to protect the lives of Americans and 

our allies and partners worldwide. 

Over 100 Nations are capable of collecting signals intelligence or 

operating a lawful intercept capability like the one you are hearing 
12 

described today. I think our Nation is amongst the very best in protecting privacy and civil liberties. 

We look forward to the discussions that you have encouraged 

today, but I also appreciate that this discussion takes place at an 

unclassified level. I especially appreciate that the Committee 

Chairman and the Committee have allowed for the possibility that 

we might have classified discussions in an appropriate setting because the leaks that have taken place of classified information have 

constituted an irresponsible and real damage to the capabilities 

that we will describe today. 

Finally, whatever choices are made by this Nation on the matter 

before us, in consultation and collaboration across the three 

branches of Government, I assure you that NSA will faithfully implement those choices in both spirit and mechanism. To do otherwise would be to fail to take the only oath that we take, to support 

and defend the whole of the U.S. Constitution. That includes the 

protection both of national security and civil liberties. 

And sir, I look forward to your questions. 

Mr. GOODLATTE. Thank you, Mr. Inglis. 

Ms. Douglas, welcome. 

TESTIMONY OF STEPHANIE DOUGLAS, 

FBI NATIONAL SECURITY BRANCH 

Ms. DOUGLAS. Thank you, and good morning, Chairman Goodlatte, Ranking Member Conyers, and Members of the Committee. 

And thank you for an opportunity to be here today. 

As you know, NSA and FBI enjoy a unique relationship, one 

which has been invaluable since the events of 9/11. The authorized 

tools available under the business records 215 and FISA 702 complement many of the other investigative tools we apply to our national security cases. 

Together with human sources, physical surveillance, and other 

logical investigation, 215 and 702 play a role in providing us a 

more full understanding of our risks and gives us an opportunity 

to proactively address national security threats. I would like to give 

you just a few examples of where these tools have played a significant role, specifically in counterterrorism investigations. 

And the first case I want to note is one that is very familiar to 

this Committee, and that is of Najibullah Zazi. In early September 

2009, NSA, using their authorities under 702, intercepted a communication between an al-Qaeda courier located in Pakistan and 

an unknown U.S. person—U.S.-based person. This U.S.-based person was inquiring about efforts to procure and use explosive materials, and there was some urgency in his communication. 

NSA advised the FBI as to this communication, as it represented 

a potential imminent threat to the homeland. Based on the nature 

of the threat information, the FBI initiated a full investigation and 

submitted a national security letter to identify the subscriber. The 

subscriber came back to an individual named Najibullah Zazi located in Denver, Colorado. 

Additionally, NSA ran a phone number identifiable with Mr. Zazi 

against the information captured under 215. NSA queried the 
13 

phone number and identified other Zazi associates. One of those 

numbers came back to Adis Medunjanin, an Islamic extremist located in Queens, New York. 

The FBI was already aware of Mr. Medunjanin, but information 

derived from 215 assisted in defining Zazi’s network and provided 

corroborating information relative to Medunjanin’s connection to 

Zazi. Just a few weeks after the initial tip by NSA, both Zazi and 

Medunjanin were arrested, along with another co-conspirator. They 

were charged with terrorist acts and a plot to blow up the New 

York City subway system. 

As you already know, the Zazi case was the most serious threat 

to the homeland since 9/11. The importance of the Zazi case is that 

it was initiated on information provided by NSA, which they acquired under 702, their coverage of an al-Qaeda operative overseas. 

Without this tip, we can only speculate as to what may have happened. 

This was a fast-paced investigation and one in which time was 

of the essence. The combined tools of 702 and 215 enabled us to 

not only begin the investigation, but to better understand the possible network involved in an active plot to the homeland. 

I would like to also represent one case to you specific to the business record 215 authority. In 2003, the FBI initiated a case on an 

individual identified as Basaaly Moalin. It was based on an anonymous tip that he was somehow connected to terrorism. 

In 2004, the case was closed without sufficient information to 

move forward on the investigation. However, 3 years later, in October 2007, NSA provided a phone number to the FBI with an area 

code which came back to an area consistent with San Diego. NSA 

found this phone number was in contact with an al-Qaeda East African-affiliated person. 

Once provided to the FBI, we initiated an investigation, submitted a national security letter for the subscriber of the phone 

number, and determined that it was Mr. Moalin, the subject of the 

previously closed case. Subsequent investigation led to the identification of others, and to date, Moalin and three others have been 

convicted of material support for terrorism. 

The relevance of this case to 215 is that if that information had 

not been tipped to the FBI, it is unknown if we would have ever 

looked at Mr. Moalin again. 

As you know, there are many other instances of the use of these 

authorities and their application to counterterrorism investigations. 

Thank you, and I am happy to answer your questions 

Mr. GOODLATTE. Thank you, Ms. Douglas. 

And I will begin the questioning. With regard to the point raised 

by the Ranking Member with regard to declassification, I just want 

to say that with regard to the Section 702 surveillance of noncitizens of the United States outside the United States, I think there 

would be few Americans who would be surprised that our Government engages in intelligence gathering with regard to those individuals. 

And they would know it even more clearly by looking at the statutes and the amendments to the statutes that have been passed 
14 

over the years, that this type of activity is clearly authorized in the 

law. 

With regard to 215, there is some controversy about whether this 

particular program is authorized under the law. And you will hear 

more about that shortly, and I will have a question myself. But my 

first question to you is why would it not have made sense—given 

the magnitude of this program, I am, frankly, surprised it has remained secret until recently for the several years that it has. 

Why not simply have told the American people that we are engaging in this type of activity in terms of gathering the information? It doesn’t give away any national security secrets in terms of 

the particular information gathered that might lead to successes 

like the one just described by Ms. Douglas. But it might have engendered greater confidence in the public with regard to understanding how the program works and public support for it. 

Mr. Cole, Mr. Litt, would you care to answer that? 

Mr. LITT. Sure. The problem is that I think that a judgment was 

made that to disclose the existence of this program would, in fact, 

have provided information to people who were seeking to avoid our 

surveillance, that it would tell them that we are looking for the 

communications they are having with Americans, and we are using 

that as a basis of tracking them and identifying their confederates 

within the United States. 

And so, the judgment was made a number of years ago when this 

program was started that it should be kept classified. It was not, 

of course, withheld from the oversight Committees in Congress. 

And as others have noted, briefings on it were offered to all Members of Congress before it was reauthorized. But the decision was 

made that this is the sort of sensitive source and method that we 

don’t want to disclose. 

Mr. GOODLATTE. Do you think a program of this magnitude, 

gathering information involving a large number of people involved 

with telephone companies and so on, could be indefinitely kept secret from the American people? 

Mr. LITT. Well, we tried. 

Mr. GOODLATTE. I understand. [Laughter.] 

So let me ask a follow-up question to you and Mr. Cole, and that 

would be how exactly does Section 215’s wording authorize the 

Government to operate a program for the collection of metadata? 

Can you walk the Committee through the Government’s interpretation of the statute that lends itself to arguing that you can do 

metadata collection? 

Mr. COLE. Certainly, Mr. Chairman. I think you have to start 

with the fact that when you look at 215 and the orders that the 

court issues under 215, there are two of them. You can’t look at 

them separately. You have to look at how they interact and operate 

together. 

And I think that is very, very important in understanding how 

this is relevant to an investigation concerning these terrorist organizations. You can’t just wander through all of these records. There 

are very strict limitations on how you can access or how you can 

use these under what is called the primary order. 

You have to have reasonable, articulable suspicion that a specific 

phone number, which they call a selector, is involved with one of 
15 

these specified terrorist organizations. And then, and only then, 

after you have documented that reasonable, articulable suspicion 

can you query this database to find out what other phone numbers 

that specific terrorist-related phone number has been in contact 

with. 

Mr. GOODLATTE. Let me follow up on that question because how 

is the collection of all of a telephone company’s telephone metadata 

relevant to a foreign intelligence or international terrorism investigation, an investigation? 

Mr. COLE. It is only relevant to the extent that you need all of 

that information in order to do the query of the reasonably articulated suspicion. 

Mr. GOODLATTE. Well, certainly, the acquisition of the type of information collected under this program is relevant to an investigation of an individual or group suspected of terrorism. But how do 

you and how does the FISC rationalize the collection of all of the 

data as being relevant to an investigation? 

Mr. COLE. There are two main reasons. One is the length of time 

that these records are kept by the phone companies varies, and 

they may not keep them as long as we keep them under this program. The court allows us to keep them for a 5-year period. 

The phone companies don’t necessarily do that. The periods vary, 

and some can be as short as 15 or 18 months. 

Mr. GOODLATTE. Mr. Inglis, with regard to Section 702, what 

happens if you incidentally collect information from a U.S. person? 

Can you explain how the minimization procedures apply to that, 

and what do you mean by minimization? 

Mr. INGLIS. Yes, sir. There are court-approved rules that we call 

minimization procedures. What they do is they say that if in targeting a foreign person under 702 who you believe to be in a foreign location to derive foreign intelligence, and you discover that 

you have also collected a communication that involves a U.S. person. They might be the person who has received that communication from your person of interest. They might be the person who 

sent that communication. They might be referenced in that communication. 

We have an obligation to first examine whether or not that communication is pertinent to foreign intelligence. If the communication is pertinent to foreign intelligence, then we must take further 

action to essentially protect the identity of that U.S. person unless 

knowledge of that identity is important pursuant to the foreign intelligence purpose. 

We would, therefore, suppress the identity of that U.S. person in 

any report that we would make that focused on the target of our 

interest, and we would take action if that communication was not 

of foreign intelligence relevance to essentially destroy that communication in place. 

Mr. GOODLATTE. How long do you retain information collected 

under 702? And you may have just answered it, but is the incidentally collected information about U.S. persons retained as well? 

Mr. INGLIS. Yes. So the incidentally collected information, unless 

it is relevant to a foreign intelligence purpose or it is evidence of 

a crime or imminent death or injury to a person, you would destroy 

that on site at that time. 
16 

Mr. GOODLATTE. And other information, how long is that retained? 

Mr. INGLIS. We would otherwise retain that for about 5 years. 

Typically in our holdings, under BR FISA, the information is 

mandatorily destroyed at 5 years. For most of the rest of our collection, 5 years is the reference frame. We found that over time at 

about the 5-year point, it loses its relevance simply in terms of its 

temporal nature. 

Mr. GOODLATTE. Thank you. 

My time is expired. The Chair recognizes the gentleman from 

Michigan, the Ranking Member Mr. Conyers, for 5 minutes. 

Mr. CONYERS. Thank you, Chairman Goodlatte. 

There are a couple of questions here that haven’t come up, and 

I would like to direct them to Attorney Douglas. If only relevant 

conversations can be secured under Section 215 of the PATRIOT 

Act, then why on earth would we find now that we are collecting 

the names of everybody in the United States of America who made 

any calls for the last 6 years or more? 

Ms. DOUGLAS. Sir, we are not collecting names. 215 only collects 

phone numbers, the time and date of the phone call, and the duration of the phone call. 

Mr. CONYERS. Well, how do you consider that to be relevant to 

anything if there is just collecting only the names—I mean, look, 

if this is an innocent pastime that we just do to keep busy or for 

some other reason, why on earth would we be collecting just the 

names—just the numbers of everybody in the United States of 

America for at least 6 years? 

Ms. DOUGLAS. I can speak to the application against investigations. And in this case, for 215, it would be specific to 

counterterrorism investigations. That information enables us to 

search against connections to other—if there is communication between a U.S.-based phone number and a phone number that is 

overseas that is related to terrorism. 

And I know that Mr. Inglis explained to you the reasonable, 

articulable suspicion standard by which we have to actually search 

against those phone numbers. 

Mr. CONYERS. Well, here we are faced with the fundamental 

problem in this hearing. We are not questioning access. We are 

talking about the collection in the first instance. 

In the first instance, when you collect the phone numbers of everybody in the United States for over 6 years, there wasn’t anything relevant in those conversations. Now you have them, and 

what I have been getting out of this is that they may—this access 

may become valuable, Mr. Ranking Member, and so that is why we 

do it this way. 

But I maintain that the Fourth Amendment, to be free from unreasonable search and seizure, means that this metadata collected 

in such a super-aggregated fashion can amount to a Fourth 

Amendment violation before you do anything else. You have already violated the law, as far as I am concerned. And that is, in 

my view, the problem. 

And of course, to help further document, the first question that 

the Chairman of this Committee asked is why didn’t we just tell 

everybody about it is because the American people would be totally 
17 

outraged, as they are getting now as they become familiar with 

this, that every phone number that they have ever called is already 

a matter of record. And we skip over whether the collection was a 

Fourth Amendment violation. We just say that the access proved 

in one case or two that it was very important, and that is why we 

did it this way. 

I see this as a complete failure to take and—you know, we 

changed the PATRIOT Act to add relevancy as a standard because 

of this very same problem that has now been revealed to be existing. And so, I feel very uncomfortable about using aggregated 

metadata on hundreds of millions of Americans, everybody, including every Member of Congress and every citizen who has a phone 

in the United States of America. 

This is unsustainable. It is outrageous and must be stopped immediately. 

Mr. INGLIS. Sir, if I may complement the answer that Ms. Douglas gave? With respect to the question of relevance, of course, it 

must be legally relevant, and it must, therefore, have operational 

relevance. I would like to address the operational relevance and 

then defer to my colleagues from—— 

Mr. CONYERS. Well, you don’t—wait a minute. We are holding— 

we are handling this discussion. 

I asked her. Maybe somebody else can do it, but my time has expired. And I appreciate your volunteering to help out here, but it 

is clear to me that we have a very serious violation of the law in 

which the Judiciary Committee deliberately put in the issue of relevance, and now you are going to help me out and defer to somebody else. Well—— 

Mr. INGLIS. No, sir. I meant to actually provide additional information. I would be happy to take the question for the record if time 

is not allowing that. 

Mr. CONYERS. Well, in all fairness—— 

Mr. GOODLATTE. Without objection, the gentleman is recognized 

for an additional minute to allow another member of the panel to 

answer the question if he so chooses. 

Mr. CONYERS. No, I don’t so choose. I am satisfied exactly what 

I have gotten from the witness that I asked the question to. 

Mr. GOODLATTE. The Chair thanks the gentleman. 

Mr. CONYERS. You are welcome. 

Mr. GOODLATTE. And now recognize the gentleman from Wisconsin, Mr. Sensenbrenner, for 5 minutes. 

Mr. SENSENBRENNER. Well, Mr. Chairman, at the risk of having 

the flag thrown at me for piling on, I want to get at the whole business of who decides what is relevant. Both the Chairman and the 

Ranking Member have said that the PATRIOT Act was amended 

in 2006 to include a relevance standard. 

Yesterday, I got a letter from the Justice Department, which was 

at great length explaining this, and I would ask unanimous consent 

that this letter be placed in the record at this time. 

Mr. GOODLATTE. Without objection, it will be made a part of the 

record. 

[The information referred to follows:] 
18 
19 
20 
21 
22 

Mr. SENSENBRENNER. Part of that letter said that, in effect, that 

all of the phone calls, meaning the telephony metadata, had to be 

collected pursuant to the court order, and then it would be up to 

the security apparatus to make a determination of which needles 

in that large haystack were relevant to a foreign terrorist investigation. 

Now doesn’t that mean that instead of the court making a determination of relevance, it is the security apparatus that makes a determination of what is relevant and which of the less than 300 series of phone calls get picked out, according to your testimony? Mr. 

Cole, would you like to answer that? 

Mr. COLE. Yes, Mr. Sensenbrenner, I am happy to address that. 

What the court does is it sets out a framework and a set of rules 

that we must follow to implement its orders. 

Mr. SENSENBRENNER. But they don’t determine which specific 

phone calls are relevant pursuant to the statute. You do that. 

Mr. COLE. Well, we report to the court periodically on the implementation of this. We get it re-upped every 90 days when there 

are—— 

Mr. SENSENBRENNER. But you do that. The court does not. 

Mr. COLE. We—the court does not—— 

Mr. SENSENBRENNER. Now if there was a criminal trial involved, 

it would be the court that would be determining a relevance standard pursuant to subpoena or for proffered evidence, wouldn’t it? 

Mr. COLE. Not necessarily, Mr. Sensenbrenner. 

Mr. SENSENBRENNER. Okay. Well, then let me continue on this. 

You know, I have been the author of the PATRIOT Act and the PATRIOT Act reauthorization of 2006. Mr. Conyers was correct in 

saying why the relevance standard was put in, and that was an attempt to limit what the intelligence community could be able to get 

pursuant to Section 215. 

It appears to me that according to this letter and according to 

the testimony of FBI Director Mueller, that relevant was an expansion of what could happen rather than a limitation when the law 

was amended, when relevant was not included in that statute. And 

doesn’t that make a mockery of the legal standard because you are 

trying to have it both ways? 

Mr. COLE. I don’t think we are trying to have it both ways. 

Mr. SENSENBRENNER. Well, you sure are because you are saying 

get—authorize, have the court authorize to get us the records of all 

the phone calls that are made to and from phones in the United 

States, including people who have nothing to do with any type of 

a terrorist investigation. 

And then what you are saying is, is that we will decide what to 

pick out of that massive maybe a billion phone calls a day on what 

we are looking at, rather than saying this person is a target. Why 

don’t you get an authorization only for that person’s telephone 

records? 

Mr. COLE. Again, going to the analogy of the criminal context, we 

would never in a grand jury situation or in an investigation that 

is a traditional criminal investigation even go to a court for the 

framework or the setting of rules or have sunsetting every 90 days 

of the authority or having compliance procedures—— 
23 

Mr. SENSENBRENNER. But, Mr. Cole, with all due respect, the letter that I got from the department that you are the number-two 

person in says that you get the FISA court order because there are 

‘‘reasonable grounds to believe that the data is relevant to an authorized investigation to protect against international terrorism,’’ 

as Section 215 requires, even though most of the records in the 

dataset are not associated with terrorist activity. 

So you gobble up all of those records, and then you turn around 

and say, well, we will pick out maybe 300 phone numbers out of 

the billions of records that you have every day, and you store for 

5 years there, and all the rest of this stuff is sitting in a warehouse, and we found out from the IRS who knows who wants to 

have any kind of illegal access to it. 

You are having it both ways. Let me tell you, as one who has 

fought PATRIOT Act fights usually against the people over on the 

other side of the aisle, Section 215 expires at the end of 2015, and 

unless you realize you have got a problem, that is not going to be 

renewed. There are not the votes in the House of Representatives 

to renew Section 215, and then you are going to lose the business 

record access provision of the PATRIOT Act entirely. 

It has got to be changed, and you have to change how you operate Section 215. Otherwise, in the year and a half or 21⁄2 years, you 

are not going to have it anymore. 

And I yield back. 

Mr. GOODLATTE. The Chair thanks the gentleman and recognizes 

the gentleman from New York, Mr. Nadler, for 5 minutes. 

Mr. NADLER. Thank you. 

The problem, obviously, Mr. Cole, with what we are hearing from 

this panel and what we have heard generally about the relevant 

standard is that everything in the world is relevant. And that if we 

removed that word from the statute, you wouldn’t consider or the 

FISA court wouldn’t consider that it would affect your ability to 

collect metadata in any way whatsoever, which is to say you are 

disregarding the statute entirely. 

Now in public briefings, including to this Committee when we 

were considering reauthorization of Section 215, Administration officials have suggested that we view the authority of Section 215 as 

similar to a grand jury subpoena. And we specified in the statute 

that an order under Section 215 ‘‘may only require the production 

of a tangible thing if such thing can be obtained’’ through a grand 

jury subpoena. 

Now can you give me, Mr. Cole, any examples where grand jury 

subpoenas were used to allow the bulk ongoing collection of telephone metadata? 

Mr. COLE. It is difficult to go into specific examples of what 

grand jury subpoenas call for—— 

Mr. NADLER. Are there any such—— 

Mr. COLE [continuing]. Because those are subject to the rules of 

secrecy under Rule 6. 

Mr. NADLER. Oh, come on. Are there any—are there any instances in the history of the United States that you know of where 

a grand jury subpoena said get every—get all information other 

than the content of a telephone call of all telephone calls in the 

United States or anything like that? 
24 

Mr. COLE. The admonition in the statute is that it is the types 

of records that are collected by grand jury subpoena, not that it is 

an identical process to the grand jury process because this is quite 

different from a grand jury process. 

Mr. NADLER. All right. The type of data—— 

Mr. COLE. The FISA court involves—— 

Mr. NADLER. Excuse me. The type of data—the type of data is 

metadata unlimited to specific individuals. 

Mr. COLE. The type of data is metadata and that—— 

Mr. NADLER. Unlimited to specific individuals because it is directed to everybody. Can you give—it is directed to every phone 

call in the United States. Can you give me any example where a 

grand jury subpoena has ever been used for anything remotely like 

that? 

Mr. COLE. These are instances where we have gone to the court 

under the 215 requirements with the relevancy—— 

Mr. NADLER. You are not answering my question. Can you give 

me any example in the history of the United States where a subpoena, a grand jury subpoena was used for anything remotely resembling all metadata not to specific phones or to specific individuals? 

Mr. COLE. Grand jury subpoenas have a different function than 

a 215 under the PATRIOT Act—— 

Mr. NADLER. I understand that. But the statute says—— 

Mr. COLE. It is hard to equate the two, Mr. Nadler. 

Mr. NADLER. You are not answering my question. You are deliberately not answering. We know they have a different function. But 

the statute says that it may only require the production of a tangible thing if such a thing can be obtained through a grand jury 

subpoena. 

Could you obtain through a grand jury procedure all metadata 

without being limited to specific named individuals or specific listed telephones? 

Mr. COLE. I think it would depend on the circumstances, the limitations that the court would—— 

Mr. NADLER. Okay. Is there is any instance in history—— 

Mr. COLE [continuing]. The nature of the investigation, and then, 

yes, I think there are instances where a court in the right circumstances could authorize that. 

Mr. NADLER. And could you give me any instance in history 

where that has ever been done? 

Mr. COLE. I am not aware of one, sitting here right now. 

Mr. NADLER. You are not aware of one. Could you supply us, 

please, with any instance because I believe this is totally unprecedented and is way beyond the statute. And you can’t give me any 

instance because it doesn’t exist. 

So within a week or two, could you supply this Committee with 

that information? 

Mr. COLE. Depending on the restrictions of Rule 6 of the Criminal Rules of Procedure, which prohibit disclosing grand jury information, we will take that record back for response—that question 

back for response. 

Mr. NADLER. And can you give us an example where ongoing 

bulk collection has been allowed by virtue of grand jury subpoena 
25 

without a showing of the connection between those tangible things 

and a specific existing investigation? 

Mr. COLE. Well, in this instance, we are showing it as a relationship to a specific investigation and specific phone number. We have 

to show reasonable—— 

Mr. NADLER. No, only for use of that information, not for collection of it. 

Mr. COLE. Well—— 

Mr. NADLER. The statute is talking about collection. You are trying to confuse us by talking about use. 

Mr. COLE. But the collection is only there and is only valuable 

if it is used, and the use is severely restricted—— 

Mr. NADLER. We are not talking about the use. The abuse of the 

statute, the abuse of civil liberties, the abuse of privacy is not only 

misuse, but miscollection. If you are collecting information about 

my telephone when you shouldn’t be doing that, that is an abuse, 

even if you just simply file that and never use it. 

Mr. COLE. We go to the court and describe to them exactly how 

the program will work, what the limitations are—— 

Mr. NADLER. Well, that—excuse me. That doesn’t help me. The 

fact that the—— 

Mr. COLE. The court authorizes us to do this collection. 

Mr. NADLER. Let me ask the question. The fact—the fact that a 

secret court, unaccountable to public knowledge of what it is doing, 

for all practical purposes unaccountable to the Supreme Court, may 

join you in misusing or abusing the statute is of no comfort whatsoever. So to tell me that you go to the FISA court is irrelevant if 

the FISA court is doing the same abuse of the statute. 

So, again, can you give me some examples where ongoing bulk 

collection—I am not asking about use—has been allowed by virtue 

of grand jury subpoena without showing of a specific connection— 

without showing the connection between those tangible things and 

a specific existing investigation? 

Mr. GOODLATTE. The time of the gentleman has expired. Mr. 

Cole will be allowed to answer the question. 

Mr. COLE. We will take that similarly as a question for the 

record, and again, depending on the Rules of Criminal Procedure, 

we will see what we can get back to you, sir. 

Mr. NADLER. And be aware, of course, that you could give it to 

us on a classified basis so that we could say our conclusions about 

that information. 

Mr. GOODLATTE. The time of the gentleman has expired. 

The gentleman from North Carolina, Mr. Coble, is recognized for 

5 minutes. 

Mr. COBLE. Thank you, Mr. Chairman. 

Lady and gentlemen, good to have you all with us today. 

Mr. Cole, let me start with you. Does the Fourth Amendment 

protection against unreasonable search and seizure apply to business records that could be obtained under 215 of the PATRIOT 

Act? 

Mr. COLE. In particular, Mr. Coble, it does not apply to the 

metadata records. There is a case, Smith v. Maryland, where the 

Supreme Court ruled that these kinds of records, there is no rea-
26 

sonable expectation of privacy. So there is no Fourth Amendment 

protection. 

Mr. COBLE. Let me follow up with another question. So does a 

person then have a reasonable expectation of privacy in third-party 

business records? 

Mr. COLE. People generally do not when they are in third-party 

hands because other people already have them. So the expectation 

of privacy has been severely undermined. 

Mr. COBLE. Is it true that a 215 order provides greater privacy 

protection than does a grand jury or administrative procedure—or 

administrative subpoena, which can be used to obtain the same 

types of business records in a criminal investigation without prior 

court approval? 

Mr. COLE. Yes, it does. There are a number of provisions in 215 

that provide much greater protection than a grand jury process 

would. First, you have to go to a court. The court has to specifically 

review the program and the description of the relevance of these 

records, how they will be accessed, how they will be overseen, how 

there will be auditing, how there will be reporting on it, how there 

will be compliance with all of the rules of the court. 

None of that takes place in the grand jury context. 

Mr. COBLE. Mr. Cole, if the Fourth Amendment applies to foreign 

countries, do other American protections under the Bill of Rights 

apply, such as the Second Amendment under the due process 

clause? 

Mr. COLE. Not necessarily, sir. The Fourth Amendment applies 

to U.S. persons who are outside of the United States, but it generally does not apply to non-U.S. persons who are outside of the 

United States. 

Mr. COBLE. Mr. Cole, for the benefit of the uninformed, and 

sometimes I feel I am in that category, describe for the Committee 

the makeup of the FISA court, who sits on it, where it resides, and 

how it operates. 

Mr. COLE. The FISA court is made up of judges, Article III 

judges, who have been nominated by the President. They cover any 

number of different Administrations. They have been confirmed by 

the United States Senate for a life appointment. They have their 

regular duties as District Court judges. 

They are appointed by the Chief Justice of the United States to 

serve a term on the FISA court. There are 11 of them at any given 

time when you have a full complement. Each of them serves for a 

week at a time. They do not take care of their other court duties 

back in their home districts. They come and serve on the FISA 

court for that week, handling the applications. 

There is a staff there as well that helps them and goes through 

it and is their clerks and some of their legal research assistants in 

this matter, and these last for, I believe, a term of 7 years that 

each judge can sit on the court. 

Mr. COBLE. And I believe you, Mr. Cole, or one of the members 

of the panel may have indicated this. That to some extent, there 

is confusion as to the number of denials. There has been criticism 

leveled at the court, indicating very few denials. But I think you 

addressed that or one of you addressed that earlier in your comment. Do you want to add to that? 
27 

Mr. COLE. Yes, the level of denials is very similar to the same 

level of denials, which is small, for normal Title III in a criminal 

context—wiretap applications that are made to judges in regular 

courts. These are also done in chambers and with one party. 

And the reason that the number is so low, first of all, is under 

the FISA, you have to have either the Attorney General or myself, 

or the Assistant Attorney General for the National Security Division, sign off on the application, very high-ranking officials in the 

department. So those applications are done very carefully in the 

first place. 

Number two, the court, if they are not satisfied with an application that comes in, will tell us, and they will say you need more 

information. You need more restrictions. You need more requirements. So we will respond to that, and unless we satisfy them on 

all of their requirements, they will not sign the application. But 

more often than not, we can go back and find the additional information that they will need. 

So there is something of an iterative process, but it is not unlike 

what goes on with a normal court every day in the Title III or the 

wiretap process. 

Mr. COBLE. Thank you, Mr. Cole. 

Mr. Chairman, I see my amber light. I would like to make one 

final statement. And this may not be the day for it, but Mr. Chairman, at some point, I would like to know the cost that has been 

expended in implementing this matter. If you would concur with 

that, I will pursue that at a later date. 

Mr. GOODLATTE. I do concur with that. That is a very important 

piece of information to have, but I believe that is classified and 

would entail the subsequent hearing that I anticipate we will have 

in a classified setting where we can get answers to questions like 

that. 

Mr. COBLE. I thank you, Mr. Chairman. 

And good to have you all with us. I yield back, Mr. Chairman. 

Mr. GOODLATTE. The Chair thanks the gentleman and recognizes 

the gentleman from Virginia, Mr. Scott, for 5 minutes. 

Mr. SCOTT. Thank you. 

Mr. Cole, did I understand you to say that you do not have an 

expectation of privacy on your phone records? 

Mr. COLE. The Supreme Court ruled in Smith v. Maryland that 

you do not have a sufficient expectation of privacy in the phone 

records, as we have talked about it. The two—— 

Mr. SCOTT. Okay. That is fine. 

Ms. Douglas, you indicated that you do not—you just get the 

numbers, not the names. Is there—if the numbers are relevant 

under whatever standard you are using, why are not the names 

equally relevant? 

Ms. DOUGLAS. Well, the names are not collected in the metadata. 

Mr. SCOTT. Well, where is the limitation? If you can get the numbers, why can’t you get the names? 

Ms. DOUGLAS. Well, we can through other legal process, and that 

is what the FBI will do. And so, if we receive a phone number—— 

Mr. SCOTT. No, I mean why don’t you get it all at once? Where 

is the statutory limitation? 
28 

Mr. LITT. If I can answer the question here, I think that this indicates the fact that as the Deputy Attorney General said that this 

program is carefully set up in such a manner—— 

Mr. SCOTT. Where is the—— 

Mr. LITT [continuing]. As to minimize the invasion of privacy. 

One of the reasons—— 

Mr. SCOTT. Where is the statutory limitation? 

Mr. LITT [continuing]. This program is found reasonable is the 

fact that the collection is very limited. The access is very limited. 

Mr. SCOTT. Okay, okay. 

Mr. LITT. And it is on that basis the court has approved the collection. 

Mr. SCOTT. You have made up. That is because you have made 

up the program. I asked you a specific question where if this is 

available, where is the statutory limitation to what you can get? 

There is no statutory limitation. You are kind of making it up as 

you go along. 

Mr. LITT. We are not making it up. We are seeking the approval 

of the court, and this collection—— 

Mr. SCOTT. Okay. What—— 

Mr. LITT [continuing]. Has been repeatedly approved by numerous judges of the FISA court, found to be in compliance with the 

statute. 

Mr. SCOTT. Okay. Once you get the information, we know 

through the recent case on DNA, once you get DNA from somebody, 

you can use it in ways that you could not have obtained the information. But once you get it, you can run it through, no probable 

cause or anything, through the database. 

My question is once you get this metadata, where is the limitation on what you can use it for? 

Mr. LITT. It is in the court’s order. 

Mr. SCOTT. Where is the statutory limitation? 

Mr. LITT. The court—the statutory limitation says that we can 

acquire the information as ordered by the court. The court sets limits on what we can do with it, and we adhere to those limits. 

Mr. SCOTT. Well, is there a limit in criminal investigations or an 

exception for criminal investigations without a probable cause? 

Mr. LITT. With respect to information obtained under Section—— 

Mr. SCOTT. Once you have got the metadata, can you run a 

criminal investigation without probable cause? 

Mr. LITT. The metadata can only be used in pursuit of a terrorism investigation, and the only thing that is done with that is 

that telephone numbers are generated out of it for further investigation. It cannot be used for a criminal investigation unrelated to 

terrorism. 

Mr. SCOTT. Wait a minute. You are talking about minimization? 

Mr. LITT. The court’s order provides that we can only use this 

data for purposes of a terrorism investigation. 

Mr. SCOTT. Well, how does the court get to—why is the court required to place that limitation on it? 

Mr. LITT. Because the court looks at the application that we are 

submitting and determines that with all of the restrictions that are 

imposed here, this is a reasonable method of collecting this infor-
29 

mation and that it complies with both the statute and the Fourth 

Amendment. 

Mr. SCOTT. Is there an exception under minimization for criminal 

investigations? Section (g) minimization procedures (2)(c) says that 

‘‘notwithstanding subparagraphs (A) and (B), procedures that allow 

for the retention and dissemination of information that is evidence 

of a crime which has been, is being, or about to be committed, and 

that is to be retained or disseminated for law enforcement purposes’’ are exempted from the minimization requirements. 

Mr. LITT. The procedures applicable to this kind of collection 

allow it only to be used on the terms specified by the court, and 

that is limited to generating the kind of information that you—— 

Mr. SCOTT. Well, is that—— 

Mr. LITT [continuing]. Talked about in pursuit of a terrorism investigation. 

Mr. SCOTT. Okay. And so, the minimization exception for criminal investigations doesn’t apply? If you trip over some criminal, 

some crimes—— 

Mr. LITT. We are not allowed to use this database for a criminal 

investigation unrelated to terrorism. 

Mr. SCOTT. Well—— 

Mr. COLE. Mr. Scott, I think there may be some confusion—— 

Mr. SCOTT [continuing]. Then that is not what the code section 

says, but if that is what you want, maybe we need to change it. 

Does exclusionary rule apply? If you trip over some crimes and try 

to use it, does it—and including the principle of the poison tree, 

evidence of a poison tree, does that apply? Do those exclusions 

apply to stuff you may trip over that you have gotten through this? 

Mr. LITT. We don’t have the ability to trip over it in this. All this 

data is, is a series of telephone numbers and other identifiers. The 

only thing we can use this data for is to submit to the pool of data 

a telephone number or other identifier that we have reason to believe, based on articulable facts, is associated with terrorism. We 

can then say what numbers has that been in contact with? 

Any other further investigation has to be done under some other 

authority. 

Mr. SCOTT. Well, you have—Mr. Chairman, I apologize, but the 

limitation, the minimization exception for a criminal investigation, 

and when I asked the Attorney General Gonzales about what you 

could use this information for, he specifically indicated criminal— 

it is (g)(2)(C) under minimization requirements procedures. 

He specifically said you could run a criminal investigation without the necessity, implying without the necessity of probable cause 

that you usually need to do to get information. 

Thank you, Mr. Chairman. 

Mr. GOODLATTE. The Chair thanks the gentleman and recognizes 

the gentleman from Alabama, Mr. Bachus, for 5 minutes. 

Mr. BACHUS. Thank you. 

Let me start by saying I am satisfied, at least from what limited 

knowledge I have, that the motivation behind this was legitimate 

and necessary for our national security to start this process, establishment of a court. And that from your testimony you have not, 

apparently not abused individual rights, and you have been an effective tool for terrorism. 
30 

But my concern is this could evolve into something that is quite 

different. The Star Chamber, I mean, in England started out as 

very good, very popular with the people. It allowed people to get 

justice that otherwise would not. But it evolved over time into a 

powerful weapon for political retribution by the king. 

And my question is, in fact, I was reading the Supreme Court. 

It said it symbolized disregard of basic individual rights. They talk 

about actually the right against self-incrimination was a direct result of what happened in England when this court evolved into 

something quite different from what it was intended to do. 

So my first question to all of you is how do we—how do we keep 

this from evolving into a weapon, an unchecked weapon by the 

Government to violate people’s constitutional rights? And I am 

more concerned about Americans’ rights, not terrorists’ rights. 

Mr. COLE. I think you raise a very excellent point, and I think 

the way this is designed, to make sure that all three branches of 

Government are involved, that this isn’t just the king or the administration or an executive branch doing it. This is something that is 

done with permission of the court and supervision of the court, 

with rules laid down by the court to make sure it comports with 

the Constitution and the privacy rights of U.S. citizens. 

It is done through statutes that are passed by this body, where 

we report back to this body and tell you what we have done with 

it and how it works and let you know what problems we have had 

and how we have fixed them. And it is also done with a lot of oversight within the executive branch, with Inspectors General and a 

number of different executive branch agencies that audit and oversee exactly how it is done and make sure it is done right. 

I think that is how. 

Mr. LITT. If I can just emphasize one point on that? This Committee has a very important role in ensuring that these authorities 

are not abused. We are required to report extensively on all activities under FISA to the Intelligence and Judiciary Committees of 

both houses, and we do that. We provide—we are required to provide copies of all significant opinions. We are required to provide 

reports about how these activities are carried out. 

And we welcome your participation in that oversight to ensure 

that, in fact, we don’t cross the bounds that the people want us to 

adhere to. 

Mr. BACHUS. Anyone else? You know, when I learned about this, 

I was not aware of it at all, and I think the original response was 

that 14 Members of Congress knew something about this. Were 

those reports erroneous? Did—— 

Mr. LITT. I can’t speak to what Members actually knew. I can tell 

you what we did to inform Members. 

At the time when this legislation was first up for renewal in 

2009-2010, we provided a classified letter to the Intelligence Committees that described this program in great detail. 

Mr. BACHUS. How about the Judiciary Committee? 

Mr. LITT. The letter was provided to the Intelligence Committee. 

The Intelligence Committee, my understanding is, sent an allMember letter saying that this is available to all Members. This 

was our intention. 
31 

We also offered classified briefings to Members of this Committee, and I recall participating in one of those briefings. And in 

fact, the letters were also referenced in a statement on the floor by 

a Member of the Intelligence Committee, saying these letters are 

available, and I urge you all to come and read them. So we were 

not trying to hide this program. 

Mr. BACHUS. Do you have any objection to the court opinions and 

periodic reports being made available to all Members of Congress? 

Mr. LITT. I think we would have to take that back. I think the 

answer is probably no, but I think we would have to think about 

the implications of that. 

Mr. BACHUS. Sure, and I think that is my response would be I 

want to think about it. 

Mr. GOODLATTE. The time of the gentleman has expired. 

Mr. BACHUS. Thank you. 

Mr. GOODLATTE. The gentlewoman from California, Ms. Lofgren, 

is recognized for 5 minutes. 

Ms. LOFGREN. Well, thank you, Mr. Chairman, and thanks to our 

witness. 

I was thinking back to September 11th, one of the worst days I 

have ever spent in the Congress, and remembering that that weekend, after the attack, that members of the White House, the intelligence community, Members of this Committee and our staff, sat 

right at that table. We sat around that table and worked together 

to craft the PATRIOT Act. 

And it is worth remembering that that original act was passed 

unanimously by the House Judiciary Committee, and it had the 

balance that we thought was important to protect the country, but 

also looking forward to protect the rights of Americans under the 

Constitution. And I share the concern expressed by Mr. Sensenbrenner that things have gone off in a different direction from that 

day. 

Now I, as my colleague has indicated from Alabama, I don’t question your motivation, which is to keep America safe. I mean, I 

know that that is what you are trying to do, and certainly we all 

want that. 

But the concern is that the statute that we crafted so carefully 

may not be being adhered to as envisioned by us and as reported 

to us. And I just want to say this. I mean, yes, we have a system 

where there are checks and balances, but part of that is that the 

legislative branch needs to have understanding of what the executive branch and the judicial branch is doing, and we can’t do that 

without information. 

It has been discussed that we get these ample reports. And I just 

want to—I just recently reviewed the annual report on Section 215. 

Is it true, Mr. Cole, or isn’t it true that the annual 215 report to 

the Committee is less than a single page and not more than 8 sentences? 

Mr. COLE. I think that the 215 annual reports are quite a bit less 

than the 702 annual reports. 

Ms. LOFGREN. I just ask the question. Is that about the size, is 

it your recollection? 

Mr. COLE. I would have to go back and take a look to answer 

specifically. 
32 

Ms. LOFGREN. All right. Is it true that the report of the number 

of applications really gives the Committee information as to the 

amount of records and the number of entities impacted? 

Mr. COLE. I am sorry? 

Ms. LOFGREN. The number of applications, is there a direct correlation between the number of entities impacted by those applications or the number of records? 

Mr. COLE. The number of entities impacted will depend on how 

many phone numbers have been called by the selector. 

Ms. LOFGREN. Right. So you could report the number of applications, but it would have no relationship to the amount of records 

actually acquired? 

Mr. COLE. It would not necessarily, no. But you can imagine it 

is small. 

Ms. LOFGREN. Thank you very much. 

I just—looking at this letter that was sent to Mr. Sensenbrenner, 

and I thank him for sending it out. And by the way, he and I have 

sent a letter to Attorney General Holder and to Director Clapper 

asking that U.S. companies be authorized to publish information 

regarding the Government request for user data under FISA. 

I think it is terribly unfair that these companies that are being 

discussed around the world have no capacity legally to say what 

has been asked of them. So I know the letter was just sent. I would 

ask that you respond to that as promptly as possible just out of 

basic fairness to the companies involved. 

But going back to the letter, it seems to me that if you take a 

look at page 2 of the letter, the second paragraph, it indicates that 

NSA has reported in the last calendar year fewer than 300 unique 

identifiers. This means that only a very small fraction of the 

records is ever reviewed by any person and is actually relevant to 

the records. Per se, that sentence indicates that getting all the data 

is clearly not relevant to a specific inquiry. 

And then if you go on to the next page, and this really gets to 

my question and you have referred to it in the testimony as well, 

the consistency allegedly with the Constitution—now it is true that 

the Constitution in the Smith case indicated that there is no expectation, reasonable expectation of privacy with information held by 

third parties. Is it your position that that constitutional provision 

trumps a statute? 

Can the Congress say the Constitution would allow you to capture every phone record, every photograph taken of an American 

at an ATM machine because that is in plain sight and that that 

constitutional provision would trump the ability of Congress to say, 

no, we are going to authorize less? 

Mr. COLE. No. As long as whatever Congress does is consistent 

with or within the bounds of the constitutional provision—— 

Ms. LOFGREN. So Congress can do less? 

Mr. COLE [continuing]. They can do that. Certainly. 

Ms. LOFGREN. Can do less. I would just like to say that as to the 

FISA court, and I am sure that the judges take their obligation as 

seriously as you do. But the whole system of our justice system is 

set up in an adversarial way. And when you have only one party 

there, you don’t have a counterparty making a case before the 

court. 
33 

The expectation that our system will work well, as it does in 

other environments, I think is misplaced. I share with Mr. Sensenbrenner the belief that this will not be able to be sustained. I look 

forward, Mr. Chairman, to our classified briefing, but I think that 

very clearly this program has gone off the tracks legally and needs 

to be reined in. 

And I thank the Chairman for yielding to me. 

Mr. GOODLATTE. The Chair thanks the gentlewoman and recognizes the gentleman from Virginia, Mr. Forbes, for 5 minutes. 

Mr. FORBES. Thank you, Mr. Chairman. 

And ladies and gentlemen, thank you for being here today. 

I don’t want to scream at you or yell at you, but you know we 

have got a lot of people across the country that would like to do 

that. And the reason this room is packed so much today and people 

were waiting in long lines is not just about this program. They 

kind of feel their country is shifting, and they feel, rightly or 

wrongly, that this Administration has adopted the philosophy that 

somehow the end justifies the means. 

They feel like that more than any Administration in history this 

is an Administration that has used taxpayer resources to advocate 

their political agendas. They feel like more than any Administration in history, this is an Administration that has decided which 

laws they want to obey, which ones they want to ignore, and which 

ones they want to just rewrite. 

They feel like more than any Nation in history, this is an Administration that has used enormous power of Government agents to 

oppress and harass U.S. citizens like they have seen with the IRS. 

And now they see this Administration using this unprecedented 

amount of data collection, first in their campaigns and then in Government, on amounts of data to use for the aforementioned goals. 

And they don’t know, every time they see a Benghazi, they don’t 

know how many more boards they are going to pull up, and there 

is one that they don’t know about or IRS programs that they pull 

up and they don’t know another one that they might see and that 

there are other data programs that they don’t know about. 

And this is something that I just don’t think we realize enough 

because over and over again, we hear Administration coming over 

here and saying this to us. They say, well, this isn’t illegal, and you 

need to change the law. 

And we need to emphasize part of this Committee is just because 

something is not illegal, it doesn’t mean that it is not wrong. And 

when we look at something, you have got a difficulty because you 

can’t even really come in here and explain what this program does. 

You can’t tell us how many people are involved with it. You can’t 

tell us the cost. You can’t tell us what the court is saying. 

But this is my question for you. There has to be an enormously 

large number of individuals administering this program. Can you 

tell us if any of those individuals have abused the power that they 

have within this program that has not been disclosed to the Congress or the American people, one? Because it would be hard for 

us to believe that there hasn’t been some abuses. 

Number two, what is your process for collecting that information 

to make sure those abuses don’t take place, and how do you dis-
34 

tribute that information? And three, has anybody ever been disciplined for abusing that information? 

And any of you who have that information, I would love for you 

to offer it to us. 

Mr. COLE. Let me if I can, Mr. Forbes, start by answering the 

questions that you have put. First of all, I think it is important to 

note that this program has been going on across a number of Administrations, and it is not unique by any means to this Administration. It has been for prior Administrations, too. 

It is also done pursuant to court authorization and pursuant to 

statute, and so it is done not as some rogue matter, but as some 

matter that, in fact, has been authorized by law, authorized by the 

courts, and carefully scrutinized. And that gets to the main part of 

the question that you have asked, which is we know of no one— 

and I can let Mr. Inglis expand on that—who has ever intentionally 

or in any kind of wrongful way abused this. 

There may have been technical problems that have happened 

here and there, but there has been nobody who has abused this in 

a way that would be worthy of or cause discipline. This program 

goes under careful audit. Everything that is done under it is documented and reviewed before the decision is made and reviewed 

again after these decisions are made to make sure that nobody has 

done the things that you are concerned about happening. 

And those are valid concerns, and we take them into account by 

having these audit procedures and having the reporting that we do 

and the consultation both with the court and with Congress to 

make sure that those things don’t happen. We have not, to my 

knowledge, disciplined anybody for this because our controls make 

sure this doesn’t happen. But we do look for it and we look for it 

hard, and we haven’t found it. 

Mr. INGLIS. Sir, if I can just—I concur with Mr. Cole’s remarks. 

Say across my time, I have been the Deputy Director now for 7 

years, there have been no willful abuse of the 215 or the 702 program. In fact, the Senate Select Committee on Intelligence in the 

summer of 2012 said that in a formal report that in a 4-year review 

that they had detected no willful abuse of the 702 program. 

I would say how would those be identified? In much the same 

way that Mr. Cole talked about. That there are a number of processes that review the formation of the selectors, the results generated by those selectors not just at NSA, but between NSA and 

the Department of Justice and the court, and there are any number 

of opportunities then to turn up a misappropriation of the resources dedicated to this program for some other purpose. 

And would those persons who abused this program then be disciplined? Of course, they should be. 

Mr. FORBES. And my time is expired. And I don’t mean to cut 

you off, but I would love to have your responses for the record. 

But when you guys tell me nobody has abused it, I thought Mr. 

Snowden abused it pretty badly. And I can’t imagine if we had 

somebody like that doing it that we don’t have at least that capacity. But I would love to have your responses for the record because 

I don’t want to abuse other people’s time. 

And Mr. Chairman, I yield back my time. 
35 

Mr. GOODLATTE. Mr. Inglis, if you care to respond to the gentleman from Virginia’s comment about Mr. Snowden, we would be 

happy to have it. 

Mr. INGLIS. I would be happy to take that question for the record 

but would say here for the record that we do not have any evidence 

that Mr. Snowden abused the program as we have defined it today. 

He may have abused his trust in disclosing classified details of that 

program. 

Mr. FORBES. But in all due respect—and I said I wasn’t going to 

yell at you, and I am going to try not to. But that is exactly what 

the American people are really worried about, that somebody is 

getting their data and using it to disclose it in some other situation. And for the life of me, I don’t understand how you guys parse 

that issue that is there. 

So, Mr. Chairman, that is what is infuriating the American people. They are understanding that if you collect this amount of data, 

people can get access to it and use it in ways that can harm them, 

not just the United States of America. And that is what is concerning them, I think, in a lot of areas. 

So, Mr. Chairman, I hope we can get a more elaborate response 

maybe for the record on that. 

Mr. INGLIS. We would be happy to provide a response for the 

record, sir. 

Mr. GOODLATTE. The Chair thanks the gentleman and recognizes 

the gentlewoman from Texas, Ms. Jackson Lee, for 5 minutes. 

Ms. JACKSON LEE. Let me thank you very much. 

And I think it is important to make sure that as those of us who 

represent Americans, we appreciate what the intelligence community does. But the very idea that the Chairman and Ranking Member has held this hearing and that you are having any number of 

hearings, I think the issue is that we have to do something. We 

have to do more to be able to ensure the trust of the American people, and I raise these questions in the context of that. 

One point that our Ranking Member made that if we cannot 

prove the necessity of this megadata collecting, then why are we 

necessarily doing it? And then we join with the Chairman that says 

it must show value, but we must also have the premise and the respect for the civil liberties of the American people. 

So I pose the first question that deals with the idea that witnesses have testified in recent hearings that the phone record data 

were queried 300 times last year. How do you define a query, and 

how do you define the necessity of what I call trolling? And someone wanted to have me rephrase that. But the gathering of millions 

and millions of megadata gathering, how do you define query first, 

but then how do you justify that gathering? 

Mr. INGLIS. Yes, ma’am. I will take that question. So, first, the 

court has approved procedures by which we can form a selector, 

and the reasonable, articulable suspicion standard was what we described earlier. And less than 300 times in 2012, we approved a selector for entering the database. 

The court also approves what is called—— 

Ms. JACKSON LEE. So the query is based upon permission by the 

FISA court? 
36 

Mr. INGLIS. Yes, ma’am. The FISA court approves the rules, but 

as we have described in this hearing, the decisions about how to 

form those selectors are made at the National Security Agency and 

subject to auditing and review. 

Ms. JACKSON LEE. So the query is made without a warrant. You 

go by criteria that has been set, and then you make a query and 

a preliminary oversight, if you will. Is that what you are saying? 

Mr. INGLIS. That is correct, ma’am. And can I just then add that 

the court has also given permission to do not just first hop analysis, meaning what numbers are in contact with that selector, but 

to then from those numbers go out two or three hops. In many of 

the cases that Ms. Douglas referenced earlier, it was at the second 

hop. It was at that second connection that something of interest 

came that then caused the Federal Bureau of Investigation to apply 

their resources to essentially uncover or add additional information 

to terrorist activities. 

Ms. JACKSON LEE. Once you do the query out of the 300, then 

what are the next step? 

Mr. INGLIS. So that query, when it is returned, can be a first hop 

query or a second or a third hop query. That information is then 

reviewed by the National Security Agency analyst, and a report 

would be written and disseminated to the Federal Bureau of Investigation if we see something that would be of interest to them. 

In many cases when a query is performed, nothing of consequence turns up. No connections that are untoward turn up. 

Therefore, no report would be made. But when—— 

Ms. JACKSON LEE. Let me ask Mr. Cole. Thank you very much. 

Let me ask Mr. Cole when does the DOJ become engaged? The 

FBI, of course, is the investigatory arm. What is the DOJ’s oversight role more specifically? And how do you utilize the FISA court? 

And as you do that, I have introduced bipartisan legislation dealing with the whole issue of the FISA court. It specifically asks for 

the release and the reporting of nonclassified opinions, which I 

think would contribute more to the trust of the American people. 

Would the Justice Department consider that? As you answer the 

question. 

Mr. COLE. Thank you, Ms. Jackson Lee. 

Certainly, we will consider that and work with you in regard to 

that. 

The Justice Department’s involvement here is to first make sure 

that the provisions of the statute in making the application to the 

court meet the standards that have been set out under law. So we 

are in the process of the application and making sure through legal 

advice that this, in fact, meets the standards set out by the statute 

as passed by Congress. 

We also engage with the court for any questions that the court 

may have as to how this will be done, what kind of oversight will 

be done, what kind of limitations will be imposed. So that we end 

up with what is a court-authorized system, as described by Mr. 

Inglis, where we go and make those and have NSA make that determination. We will—— 

Ms. JACKSON LEE. Mr. Cole—— 

Mr. COLE [continuing]. Audit as well the determinations on a 

random basis to make sure that they are in compliance with what 
37 

the court has ordered. And if they are not in compliance, we will 

then report that to the court and then oversee, with the court’s supervision, fixing those compliance issues to make sure that they do 

comply. 

Ms. JACKSON LEE. Let me interrupt you so I can just get this last 

question in to Mr. Inglis. Mr. Inglis—thank you very much. 

Mr. Inglis, let me just put this question out. We have had a release of data and a suggestion that the release that has been given 

by an individual that is now traveling around the world has a dastardly impact on knowing the system of collection of data, in the 

person of Mr. Snowden. 

Can you speak generally to the idea of the impact, and can you 

also express the reason for 70 percent of the intelligence budget 

being used for contractors? I offer to you 2434 that is asking for 

a study for that, a bill that I have introduced. But I would like to 

know those two questions quickly, please. 

Mr. INGLIS. Yes, ma’am. On the first question, I would say that 

the impact associated with Mr. Snowden’s disclosures can be very, 

very harmful. It is too soon to tell whether, in fact, adversaries will 

take great note of the things that he has disclosed. But those capabilities, sensitive capabilities give them a playbook as to how they 

would avoid, right, the time and attention of the U.S. foreign intelligence and, for that matter, domestic intelligence organizations. So 

we are very concerned about that. 

Mr. Litt would like to take the second question on contractors. 

Mr. LITT. Yes, on the question about contractors, it is important 

to differentiate between two kinds of contractors. When we—when 

Lockheed Martin or somebody builds a satellite for us, that is a 

contractor. And so, when you talk about 70 percent of the budget 

being contractors, and I don’t know that number offhand, but I will 

assume it is accurate, that includes all the contracts for building 

of satellites, for rental of space, and so on and so forth. 

There is another category of contractors, which we call core contractors, which are the people who work in the building side-byside with us. We have been working very hard to reduce the number of core contractors. I think in the last 5 years, we have reduced 

it by 36 percent. 

Obviously, as a result of what has happened recently, we are 

looking again at whether certain categories of employees should not 

be contractors but should be made Government employees. 

Ms. JACKSON LEE. Mr. Litt, we have had this discussion before. 

Mr. GOODLATTE. The time of the gentlewoman has expired. 

Ms. JACKSON LEE. I think you need help, and I would like to 

work with you on the legislation. 

Thank you, Mr. Chairman. I would like to work with Mr. Litt to 

get that done and get that more—— 

Mr. GOODLATTE. The time of the gentlewoman has expired. 

Ms. JACKSON LEE. I yield back. 

Mr. GOODLATTE. The gentleman from Iowa, Mr. King, is recognized for 5 minutes. 

Mr. KING. Thank you, Mr. Chairman. I appreciate this hearing 

and the testimony of the witnesses. 

And I would first turn to Mr. Litt. And if I remember in your 

opening statement, you made mention that there wasn’t restriction 
38 

on foreign intelligence surveillance prior to 1978 and the FISA 

court. Am I correct on that? 

Mr. LITT. Yes, there was no judicial involvement. 

Mr. KING. And I would submit that every Nation that I know of 

does foreign surveillance, and I don’t know of other Nations that 

have judicial interference with the national security activity of foreign surveillance. And are you aware of any? 

Mr. LITT. I can’t speak for every Nation, but I think, generally 

speaking, you are correct that other Nations do not have their 

courts involved in foreign intelligence activities. 

Mr. KING. So we are relatively unique in that, and neither do I 

understand why we would be concerned about the privacy or I will 

say the manufactured constitutional rights of foreign persons in 

foreign countries communicating with other foreign persons in foreign countries. I don’t know why we would worry about their privacy. 

And I don’t know why we would worry about their privacy if 

there is a nexus that might happen to be in the United States, provided it didn’t interfere with the rights of a U.S. person. Would you 

agree with that? 

Mr. LITT. Well, I think from the point of view of the Constitution, 

it is correct that as the Deputy Attorney General said, that foreigners generally aren’t protected by the Constitution. It is, nonetheless, true that we don’t go out indiscriminately even as to foreigners. We only collect intelligence that has a valid foreign intelligence purpose. 

Mr. KING. Yes, I understand the decency of the American people, 

but are we safer when we have judges deciding what we can surveil in foreign countries when there are foreign persons? 

Mr. LITT. I think that we have found that the operation of FISA 

so far has allowed us to collect the foreign intelligence that we need 

to collect to protect the Nation. 

Mr. KING. And I am hearing that. Just another way of asking 

questions about this. The phone companies collect a lot of data, and 

it was mentioned that you like to keep that data for 5 years, the 

metadata. But some only keep it for a year and a half. 

If an agreement could be reached with the phone companies to 

maintain that data for a 5-year period of time, the duration that 

you request, wouldn’t that be a firewall that would be more reliable 

than having to have the facility to restore all that data. Mr. Inglis? 

Mr. INGLIS. Yes, sir. A reasonable question, and I think that 

there are some challenges that could be overcome. The first is that 

those companies collect that data for their own business purposes, 

not necessarily for the Government’s. 

And so, to rely upon what they hold themselves, there would 

have to be some basis by which you could either compel them or 

have some confidence that over time—— 

Mr. KING. A contractual agreement perhaps? 

Mr. INGLIS. Pardon, sir? 

Mr. KING. A contractual agreement perhaps? 

Mr. INGLIS. Contractual agreement, possibly some liability protection. I will leave the legal framing of that to those who do statute and policy. 
39 

Two, you would have to have some confidence that you could efficiently, quickly query that data. 

Mr. KING. Sure. 

Mr. INGLIS. And so, if you had multiple providers, upwards of 

more than two providers, you would then run pillar to post 

querying that data to—— 

Mr. KING. Could I ask you to take a careful look at that and 

come back to me with a—with really a serious, reasoned answer? 

You are giving me a good answer so far. I would just like you to 

dig in—— 

Mr. INGLIS. Yes, sir, we will. So it turns out that the Senate Select Committee on Intelligence, House Permanent Select Committee on Intelligence, and the executive branch have all asked us 

a question along those lines. We would be happy to provide those 

to you. 

Mr. KING. Curious. Okay. Well, my clock is ticking down, but I 

will stick with you, Mr. Inglis. 

Now I am just going to ask this question, and it is not really a 

hypothetical, but point it out this way. And I am going to go 

through the list. So you have to check on each one, and I will come 

back if I need to. 

Do we have the ability to not necessarily listen in, but track 

every phone call in the United States? That is one question. 

Second one, do we have the ability to track any email in the 

United States? Do we have the ability to track Web site activity, 

any Web site activity in the United States? 

Do we have the ability to enter into active chat rooms and in real 

time monitor? Do we have the ability to track any electronic credit 

or debit transactions, including the ATM transaction mentioned by 

the gentlelady from California? Do we have the ability to locate cell 

phones that are active? 

Do we have the ability to track GPS locators, whether they are 

on vehicles or other devices? And then I know my clock is running 

down, so I want to pour a little more in here. 

It is reported by the Obama campaign that they profiled voters 

with open source data and used that data to target voters for turnout and voter suppression. The IRS has used their search engine 

to target the President’s political enemies. 

Now if we can go this far, if all of these things are happening, 

if the answer is relatively yes to this list that I have given, then 

I would charge that it would be likely impossible to drive from 

Bangor, Maine, to Los Angeles without leaving a data trail in this 

country. And all of these things can be justified by the Constitution, by statute, by case law. 

Am I close? And how would you respond to that big question? 

Mr. INGLIS. Yes, sir. If the predicate to each of those eight questions is ‘‘in the U.S.’’ and if the further predicate is ‘‘can the NSA,’’ 

the answer would be no to all of those questions. Is it technically 

feasible to do some of those things? Of course. 

And some of those things are, in fact, done by marketing organizations, by the telecommunications writers who attempt to determine the flow and the allocation of resource bandwidth to their resources. But the National Security Agency, as a foreign intelligence 
40 

entity, lacks the authority and, frankly, lacks the collection to do 

the things that are on that list of eight questions. 

Mr. KING. I would like to drill into that a little deeper if I had 

the time, but I thank you and I will yield back. 

Mr. INGLIS. Sir, we would be happy to take a visit at NSA or 

come down and talk to you in whatever detail you would prefer. 

Mr. GOODLATTE. The Chair thanks the gentleman and recognizes 

the gentleman from Tennessee, Mr. Cohen, for 5 minutes. 

Mr. COHEN. Thank you, Mr. Chair. 

First, I would like to make a point. One of the previous questioners took the opportunity to attack the Administration and said 

this Administration has used the ends to justify the means in many 

areas. 

I believe, Mr. Cole, you said that all these programs started 

under the Bush administration and have not differed from Republican and Democrat. Is that correct? 

Mr. COLE. That is correct, sir. 

Mr. COHEN. I appreciate your clearing it up. And then to this 

question that the President and this Administration on the IRS, I 

believe it has come out that they not only looked at Tea Party, but 

they looked at liberal groups and any group that they felt was 

more than 50 percent political to look at in IRS. And it is wrong 

to question this President on those issues once the facts have come 

out to show that it was not a partisan or issue-driven area. 

And I find—take umbrage on behalf of the Administration at 

such questions and such allegations. 

Now let me ask you this, sir. Mr. Snowden, what security status 

did he have? He could see anything there that he wanted to? Was 

he limited in what he had access to? 

Mr. COLE. Let me put that over to Mr. Inglis. 

Mr. COHEN. Sure. 

Mr. INGLIS. Mr. Snowden had a top secret special compartmented 

intelligence clearance. That is standard for someone in the U.S. intelligence community given access to top secret information. 

He, as a system administrator, had additional privileges that he 

could then set the permissions on various devices within the information systems, who could access things and how you could move 

data around. 

Mr. COHEN. Generally, how many people—how many people generally are in the same level as he was to access this information? 

Mr. INGLIS. Across the population—and again, in this forum, I 

will be general in my description. But across the population numbering in tens of thousands, and you would expect hundreds of people would have those sorts of extraordinary permission, system administrator permissions—— 

Mr. COHEN. So tens of thousands of people could have done what 

Snowden did? 

Mr. INGLIS. No, sir. I would say that perhaps hundreds. And 

could I make a further distinction between his privileges in terms 

of what he could control? 

Like any organization, NSA has a side of its information architecture that is intended to make information available to people so 

that they might discover capabilities, they might find each other, 
41 

they might pass email to each other. It is intended to be a free exchange of information. 

But then there is a production side that is much more rigorously 

controlled, and there is a need-to-know rule, philosophy on that 

side. Now Mr. Snowden took ruthless advantage of the former and 

did not have access to the latter, except in some limited circumstances in the training that he undertook in the last few 

months of his—— 

Mr. COHEN. I asked in a letter, and you responded to me—I believe I got it last night—about the background on the security processing of Mr. Snowden. And I was concerned that a high school 

dropout, not that there can’t be great high school dropouts, but it 

shows you can’t meet certain criteria. 

Because basically finishing high school is you are going to jump 

through the loops. That guy wouldn’t jump through the loops, and 

he has shown at other places he wouldn’t jump through the hoops 

and he wouldn’t do that. To put him in that type of top security 

level, I think, is questionable. 

But it was said that the Associate Directorate for Security and 

Counterintelligence begins the clearance process. Is any of the 

work of the Associate Directorate for Security and Counterintelligence contracted out, or is that all done by Government employees? 

Mr. INGLIS. I think the determinations of whether to grant a 

clearance or not, that is an inherently governmental function. And 

so, that would be retained by Government employees. But in the 

investigation, the determination of the facts and circumstances associated with anyone’s clearance determination, some of that would 

be contracted out. 

And I could provide the details—— 

Mr. COHEN. Does it concern you at all? Should it be contracted 

out, or should that be strictly in-house? 

Mr. INGLIS. There is an inherently governmental decision to be 

made in that, and that, therefore, should be withheld and retained 

inside the Government. The production of information in terms of 

conducting interviews, investigations, I think that some of that can 

be reasonably contracted out such that the synthesis and an examination of that is done by someone that has the higher trust. 

Mr. COHEN. And how did Mr. Snowden take this data with him? 

He has got certain information in Moscow with him now. How did 

he do that? 

Mr. INGLIS. Sir, I don’t actually know precisely how he took the 

information with him, and it is a matter of investigation. I think 

in due course, we will know, and we would be happy to provide 

that to you. 

Mr. COHEN. But he would have probably taken it on some type 

of a disk or some type of a little with him? 

Mr. INGLIS. I just—— 

Mr. COHEN. From a secure facility, I presume—— 

Mr. INGLIS. I would just be speculating. I think that that is possible. 

Mr. COHEN. Well, should there not be some changes in the procedures to make sure that people don’t leave that secure facility with 

disks or anything else? 
42 

Mr. INGLIS. Mr. Cohen, I would say that we are examining all 

of that. There are some controls already in the system about who 

can download to secondary storage devices—— 

Mr. COHEN. All right. Let me ask Mr. Cole. You mentioned that 

the judges come from different Administrations, the FISA judges. 

Would it surprise you to know that 10 of the 11 judges all came— 

were appointed by Republican Presidents? 

Mr. COLE. These are—it wouldn’t surprise me. It wouldn’t surprise me either way. These are selections that are made by the 

Chief Justice. 

Mr. COHEN. By the Chief Justice, who is a Republican appointee. 

And he has picked—10 of the 11 judges he has picked were appointed by Republican Presidents. Yet if you go back over history, 

back to Jimmy Carter, it is about the same number of years. There 

is a difference of 4 of Democratic and Republican Presidents. But 

he chose Republicans. 

Do you think there should be some change to make sure that 

there is possibly an ideological balance on that FISA court? 

Mr. GOWDY [presiding]. You can answer the question. The gentleman’s time has expired, but you can answer the question. 

Mr. COLE. I think those are issues that we can discuss, that we 

try to take partisan politics out of the judicial aspect of it, and it 

operates, I think, best when it is insulated from that. 

Mr. COHEN. I thank the panel, and I thank the gentleman from 

the Palmetto State. 

Mr. GOWDY. Thank the gentleman from the Volunteer State. 

The Chair would now recognize the gentleman from Texas, Judge 

Poe. 

Mr. POE. Thank the Chair. 

Thank you for being here. 

My background is, as the Chairman just mentioned, a judge. I 

spent 22 years at the criminal courthouse in Houston trying everything from stealing to killing. So I don’t like criminals at all. 

But I have looked at the Constitution and read it, and I am going 

to just read you one thing, one phrase that all of you know probably by memory. It is the Fourth Amendment, ‘‘The right of the 

people to be secure in their persons, houses, papers, and effects 

against unreasonable searches and seizures shall not be violated. 

No warrants shall issue, except upon probable cause, supported by 

oath or affirmation, and particularly describing the place to be 

seized and searched and the persons or things to be seized.’’ 

And as we all know, generally speaking, historically, warrants 

are brought to judges by law enforcement and the judge signs or 

doesn’t sign the warrant, issuing the paper to go out and seize that 

person in that specific place. 

Now I have read that numerous times, and I don’t see in here 

anywhere as an exception for national security. Do any of you see 

a national security exemption to the Fourth Amendment? 

Mr. LITT. There is not a national security exemption, but several 

courts have held that there is—that the warrant requirement of 

the Fourth Amendment does not extend to the conduct of foreign 

intelligence. That is not to say that the reasonableness requirement 

doesn’t apply. 

Mr. POE. Okay. 
43 

Mr. LITT. But the warrant requirement—— 

Mr. POE. I just have a little bit of time. I understand your answer. We are not talking now about foreign intelligence. Let us set 

the foreign issue and terrorists overseas where they are running 

wild, set that aside. 

Let us talk about searches and seizures in the United States of 

American citizens. Question, is there a national security exception 

to the Fourth Amendment when it comes to American citizens in 

the United States? Do you see that in the Fourth Amendment, any 

of you? 

Mr. LITT. Again, there is not a national security exception. There 

is a case of the Supreme Court called United States v. United 

States District Court. It is possible to have foreign intelligence collection against Americans, and I offer you the situation of an American who is a spy for Russia. We can be collecting valid foreign intelligence there, even though that person is an American. 

It happens that the Congress, in the FISA, has established warrant requirements for electronic surveillance and so on. 

Mr. POE. I understand that. But the Fourth Amendment doesn’t 

give that example. 

Mr. LITT. With due respect, there are cases that say—— 

Mr. POE. Okay. 

Mr. LITT [continuing]. There is an exception—— 

Mr. POE. We are going to argue until the sun goes down. The 

Fourth Amendment doesn’t mention national security exception 

when it comes to the Fourth Amendment. That has been expanded 

throughout the years because of FISA, because of court rulings, but 

it is not in the Fourth Amendment. 

And I think that we should remember that the Fourth Amendment was written because of what was going on with King George 

III, how he was going into people’s homes in the United States— 

the Colonies in those days—and seizing things with his Redcoats 

without a warrant. That is the basis of it. 

And I hope we don’t get to a point in this country in the name 

of national security that we infringe and bruise the Fourth Amendment. I don’t know about the four of you—— 

Mr. NADLER. Would the gentleman yield? 

Mr. POE. I won’t. Sorry. I don’t know about the four of you, but 

I have been in the former Soviet Union when it was—we can’t use 

this word anymore—Communistic. And I was there, and the actions of the citizens were constantly under surveillance by government. 

And anything that was done, the government would say we are 

doing this for national security reasons because of those bad, old 

Americans overseas. We go into your homes. We bruise the concept 

of rights all in the name of national security. 

That concerns me, and I hope, as we move forward as a Congress, we rein in the concept that it is okay to bruise the spirit of 

the Constitution in the name of national security. 

Question, people who have had their—the law NSA violated. I 

think Snowden, I don’t like him at all, but we would have never 

known what happened if he hadn’t have told us. Do they have a 

recourse against the Government for improperly seizure of their 

records? Is there a recourse? 
44 

Mr. GOWDY. You may answer the judge’s question. His time is 

expired, but you may answer the judge’s question. 

Mr. COLE. It depends on the nature of that seizure, depending 

on where they came from. For example, if it comes from a third 

party, it is not necessarily their records. But the phone company 

can certainly challenge the subpoenas. And if it was to be used 

against them in a court, they would be in a position to be able to 

challenge that use. 

Mr. POE. I thank the Chairman. I have other questions I would 

like to submit for the record for the four panelists. 

Mr. GOWDY. And I am confident that one of your colleagues will 

yield you time, Your Honor, since you have made it known that you 

want it. And if they won’t, I will give you mine. 

The Chair will now recognize the gentleman from Georgia, Mr. 

Johnson. 

Mr. JOHNSON. Thank you, Mr. Chairman. 

Mr. Cole, to follow up on some of the principles that you were 

just talking about, are you familiar with the case of State v. Maryland back in 1979, U.S. Supreme Court? 

Mr. COLE. Smith v. Maryland? 

Mr. JOHNSON. Yes. 

Mr. COLE. Yes, I am, sir. 

Mr. JOHNSON. Having to do with telephone records. Is that correct? 

Mr. COLE. That is correct. 

Mr. JOHNSON. And the question was whether or not there was 

a Fourth Amendment privacy interest in telephone records held by 

the telephone company? 

Mr. COLE. That is correct. That was the issue. 

Mr. JOHNSON. And how did the court rule on that issue? 

Mr. COLE. The court ruled that there was no reasonable expectation of privacy in those records because they really belong to the 

telephone company. They didn’t belong to the individual who they 

related to. 

Mr. JOHNSON. Now is that case applicable to the case or to the 

issue of collection of metadata? 

Mr. COLE. Yes, sir, it is. 

Mr. JOHNSON. All right. And so, it was the collection of metadata, 

domestic-to-domestic phone calls metadata—not content, but 

metadata. Domestic-to-domestic, domestic-to-foreign, foreign-to-domestic. Is that correct? 

Mr. COLE. That is correct. That is the metadata that we are talking about here. 

Mr. JOHNSON. That is the program that Edward Snowden revealed. Is that correct? 

Mr. COLE. That is correct. 

Mr. JOHNSON. And he also revealed a program called the PRISM 

program. Is that correct? 

Mr. COLE. That is correct as well. 

Mr. JOHNSON. The PRISM program was a program that enabled 

the collection of Internet metadata, not content. Is that correct? 

Mr. COLE. No, that is not correct. 

Mr. JOHNSON. That is not correct. Okay. Explain to me what the 

PRISM program—— 
45 

Mr. COLE. PRISM, and I can defer to some of my colleagues if 

I get any of this wrong. PRISM is under the 702 provision, which 

allows collection of content, but it is only content of non-U.S. persons who are reasonably believed to be outside of the United 

States. 

Mr. JOHNSON. Okay. So that is the PRISM program which collects data, including content, from foreign communications, and 

then there is a minimalization process of eliminating domestic-toforeign or foreign-to-domestic communications that were not relevant to national security. Is that correct? 

Mr. COLE. That is generally correct, or some serious impending 

death or something like that, if there is an emergency. But generally, that is correct. 

Mr. JOHNSON. Now that program, certainly we don’t want our adversaries to know of what we are doing to watch them and to surveil them, foreign intelligence collection. We certainly don’t want 

that to be exposed to the public? 

Mr. COLE. No, sir. We do not. 

Mr. JOHNSON. We need that to be kind of secret. But with respect 

to the data collection of domestic-to-domestic metadata, why is it 

necessary that the American people not know of that program? 

Why is it that that program has to be confidential, classified, secret? 

Mr. COLE. I wasn’t there at the time that it was classified, but 

I can give a little bit of speculation. The more people know about 

the way we go about trying to identify terrorist networks, the more 

they will avoid the kinds of ways that we use to do that. They may 

start to avoid communicating through phones. 

Mr. JOHNSON. If they can’t communicate through phones or can’t 

communicate over the Internet, what will they do? Take a can on 

one end and put a string through it, and a can on the other end? 

Would they communicate like that? 

Mr. COLE. It may be more difficult for them to communicate, but 

they may find other ways or other mechanisms or other providers 

to do it through. 

Mr. JOHNSON. Well, it is always going to be a cat and mouse 

game in that regard. 

Mr. COLE. That is correct. 

Mr. JOHNSON. The American people, in my opinion, should know 

of the activities that affect them, the collection of telephone 

metadata is not personal information. However, the Government 

collecting this information and creating a database with which it 

can then use to investigate information that is acquired from foreign sources related to national security or terrorist act, the American people may conclude that they want their Government to collect that data. 

But if they don’t know that the Government is collecting the data 

and then they find out after it is leaked by someone who thinks 

that it is illegal, they find out in that way and then they start to 

lose confidence in their Government. Is that the situation that we 

find ourselves in today, anyone? 

Mr. GOWDY. The gentleman’s time has expired. You may answer 

the question. 
46 

Mr. JOHNSON. And by the way, I am a former judge, too. [Laughter.] 

Mr. GOWDY. Your Honor, had I known that, I would have addressed you appropriately. Please accept my apologies, Your Honor. 

Mr. JOHNSON. Thank you. Thank you, Mr. Chairman. 

Mr. COLE. I think that is always the kind of issue that we wrestle with, which is the issue of trying to balance the need to protect 

the secrecy of some of these programs so that they will be effective 

with the need to be as transparent as we can about it because that 

is the kind of society we live in, where people participate in the decisions of government. 

So those are always difficult balances to find, and that is the one 

we are trying to find and we find ourselves in right now. 

Mr. JOHNSON. Thank you. 

Mr. GOWDY. Thank you, Judge Johnson. 

The Chair would now recognize the gentleman from Idaho, Mr. 

Labrador. 

Mr. LABRADOR. Thank you, Mr. Chairman. 

You know, I think more important than balancing those needs is 

to balance our liberties with our security, and I think that is what 

we are all concerned about today. We are looking at a system that 

is allowing the Government to collect everybody’s metadata. 

And just recently, I had the opportunity to travel through a series of countries, and I won’t mention which country it is, but I was 

told before I went to that country that it was a police state. And 

I had heard that term my entire life. I had never really understood 

what it meant. 

I had heard about the USSR and other Nations that were constantly surveilling their citizens and the people who visited that 

country, and I had never experienced what I experienced when I 

was there. Where I actually felt, literally, like I was being observed 

in very place that I went. 

And the place was very secure. The place was very safe. There 

was very little crime. There were very few things happening. But 

it was because people had given up their liberty in exchange for security. 

And I think that is what this Committee and I think what most 

Americans are concerned about, that we are going to give up our 

liberties in exchange for security. So I just have a few questions. 

Mr. Litt, you said in your introductory statement that this was 

not a rubber stamp, that the judges were not a rubber stamp. But 

I had a hard time following your argument because your argument 

seems to be that because the judges are actually reading the material, it is not a rubber stamp. That seems to be a nonsensical argument to me. 

I can either rubber stamp something by reading the material or 

not reading the material. That doesn’t seem to be a determination 

of whether somebody is rubber stamping something. It seems to me 

that the difference—I was a criminal defense attorney. Never a 

judge, just a criminal defense attorney. 

Mr. LITT. There is still time, sir. 

Mr. LABRADOR. But no thank you. And it seems to me that there 

is always a check and balance on the power of the Government. 

Even when you go get a warrant when something happens, you 
47 

still have an adversary on the other side who can contest it in 

court, who can contest it in hearings, who can contest all those 

things. But that is not happening in the FISA court. 

How can we address that? 

Mr. LITT. So I have a couple of things to say, if I would? On your 

first point about the FISC being a rubber stamp, it is not just that 

they read the opinions. I mean, the idea of a rubber stamp is that 

they don’t think about it. They just say you are giving me this, approved. And my point is that is not what happens. 

They not only read it. They ask questions. They think about it. 

They push back. They do a careful study and analysis. So it 

wasn’t—I didn’t mean to suggest that it is only because they read 

the—— 

Mr. LABRADOR. Okay. All right. 

Mr. LITT. On your second point, if I can just get philosophical for 

a second, this goes to one of the other points that I made in my 

opening remarks, and that is that what we have here is not—is the 

oversight of intelligence activities. It is not a litigation. It is not a 

criminal trial. It is not a civil trial. 

This is a situation—— 

Mr. LABRADOR. And I understand that, but let me stop you there. 

And again, like Judge Poe did just a minute ago, I am not so worried about Section 702. I am not so worried about foreign intelligence. I am worried about you are gathering my information. It 

is my personal data that right now the United States has, and I 

am concerned about that. 

I am concerned about you having the data, the metadata of every 

single American, and I think there should be some mechanism for 

us to be able to counter whatever the—and I have all respect for 

judges. I served as a lawyer for 15 years. They were usually right, 

and I was usually wrong. At least I would tell them that. 

And I have a great respect for the legal system, for the judiciary 

system. But I am concerned when you don’t have somebody on the 

other side, advocating for the rights of citizens of the United 

States, and it is something that we need to discuss here in this 

Committee and we need to figure out. 

Now let us go to Smith v. Maryland. Mr. Cole, you mentioned 

Smith v. Maryland. It is totally not an analogous case, I believe, 

to what we are talking about here. What in the FISA statute or 

in the PATRIOT Act allows you to collect the data of every single 

American? That is what I am not understanding. 

Because even if you follow Smith v. Maryland, you are talking 

about one individual who was suspected of committing a crime, and 

now you are telling me, and we have just recently learned, that we 

are collecting the metadata of every single American. And that concerns me. 

Mr. COLE. I think there are two different issues that are involved 

here. Smith v. Maryland only goes to the issue of whether the 

Fourth Amendment applies to this kind of data, not whether the 

Fourth Amendment prohibits or allows the kind of collection under 

215. That is a separate issue, and that is governed by the provisions of the statute of Section 215, which requires that in order for 

a court to approve the collection method that is being put forth, it 
48 

must have demonstrated to it that the data is relevant to the investigation of the specified terrorist groups. 

The relevance is found in the combination of the two orders. The 

limitations first, where the court says you can’t just roam through 

this any time you want, for any purpose you want, any day you 

want, any time you want. That cannot be done. You must find reasonable, articulable suspicion that the number you want to query 

is related to one of these terrorist groups. 

Mr. LABRADOR. And I understand that. I believe that this argument, before my time has expired, but I think that determination 

has to occur before you collect the data, not after you collect the 

data. And I think that is what is wrong with what you guys are 

doing at this time. 

But I appreciate your service. I appreciate you being here today. 

Mr. GOWDY. I thank the gentleman from Idaho. 

The Chair will now recognize the gentlelady from California, Ms. 

Chu. 

Ms. CHU. Thank you, Mr. Chair. 

I was listening to the steps that you outlined for actually doing 

a query for the metabase, the metadata. And you were describing 

it as a way of showing what kind of constraints you use on this information. 

So, Mr. Inglis, I would like to ask this. It sounds to me like, first, 

you have determined that the phone numbers of all the American 

people is relevant. Then in order to actually query the database, 

you have to establish reasonable, articulable suspicion. And in 

order to do that, you have said that 22 people at NSA can approve 

the query. 

I wonder why is it that these 22 people have this power? They 

appear to be acting like court judges, and why would they be performing the job that the FISA courts were set up to do? 

In other words, shouldn’t the agency go to a FISA court to seek 

to retrieve data from a third party’s database when they actually 

have need of specified information, and who are these 22 people? 

Mr. INGLIS. So the court, in its order, has prescribed that particular procedure, has prescribed that those people, that number of 

people would have that authority, and that those people would follow court-ordered procedure and that they be trained to a standard, 

again approved by the court. And so, that is how we came to that 

particular implementation. 

Defer to Mr. Cole for any of the legal analysis under that. 

Mr. COLE. I think the only issue that I would take with how you 

describe it is by saying you first have to define or find that all of 

those records are relevant. This is a combination of two different 

court orders that come together, and they have to be read together 

as you look at this. 

So it is not just one or the other. It is a whole program that is 

put together and presented to the court with the limitations and 

the oversight and the restrictions on how it can be accessed. Only 

with all of those considered as a whole does the court then make 

the relevancy determination. 

Ms. CHU. Well, then let me continue on with the description that 

you gave with regard to how you proceed along these lines, which 

is that after they approve it, then it appears that after the fact you 
49 

have an audit, and then you file papers with the court on this 

audit. And then the Department of Justice reviews it. 

Mr. COLE. It is not exactly in that order, and again, Mr. Inglis 

can correct me if I am wrong. There is the documented reasonable, 

articulable suspicion that takes place ahead of time. That is then 

reviewed again by supervisors ahead of time to make sure that it 

is being done properly and the standards are being applied properly. 

The query is then made. On a periodic basis, the Department of 

Justice and the Office of the Director of National Intelligence, the 

Inspector General for NSA all sample and look at these things to 

make sure that, in fact, it is being applied properly and that it is 

being done properly and that there aren’t any misapplications of it. 

And there are periodic reports that go to the court of any compliance problems. We have to talk about every 90 days getting renewed authority. And when there are any issues that come up and 

any problems that are discovered, they are reported to the Congress and to the Intelligence and the Judiciary Committees as well. 

So there are a lot of different checks and balances and audits 

that go on, both before the query is made, as well as after the 

query is made. And if there are problems found with the query, 

then that is all fixed, and whatever is collected is remediated. 

Ms. CHU. Well, my concern with regard to the second half is that 

it is retroactive, and it seems that more of the protection should 

be on the first half of these steps that you are talking about. And 

are those documents with regard to your DOJ reviews of the queries, are those available to this Committee? 

Mr. COLE. I would imagine that those would probably be classified documents. I would have to go back and check, but that is— 

it certainly would look at the facts that we have and how we get 

them and what the nature of them is. So my guess would be that 

those would be classified. 

Ms. CHU. Are they—well, you said they were reviewed by Congress, but where? 

Mr. COLE. I think that the review takes place. There are reports 

that are made. When leadership of the Committee or other aspects 

of the Committee want briefings in classified settings, those are arranged as well. 

Ms. CHU. Okay. Well, let me ask also about the issue of court 

documents. I understand that secrecy is essential when conducting 

any intelligence investigations. But we have to ensure that these 

efforts are working within the legal framework of the Constitution. 

We learned earlier this week that a FISA court agreed to declassify documents from a 2008 case in which Yahoo! raised concerns 

about NSA’s data collecting program, and other requests have been 

filed by companies that are in similar situations. What is the harm 

in releasing this type of information? Shouldn’t the American public be informed about how this type of information is collected and 

used, and why couldn’t you redact the information that is of security concern? 

Mr. GOWDY. You may answer the question. The gentlelady’s time 

has expired, but you may answer her question. 

Mr. LITT. I think we all agree that that is something that should 

be done. It is difficult to do because, frequently, the classified infor-
50 

mation is fully intertwined with the legal analysis. But we recognize that it is our obligation to make as much of this available to 

the public as we can, and we are working as hard as we can to accomplish that. 

Ms. CHU. Thank you. 

Mr. GOWDY. Thank the gentlelady from California. 

The Chair will now recognize the gentleman from Texas, Mr. 

Farenthold. 

Mr. FARENTHOLD. Thank you, Mr. Chairman. 

I don’t know where to start here. I have got so many questions. 

I guess I will start with Mr. Cole. 

Do you see any limitation under the Fourth Amendment or the 

PATRIOT Act on the Government’s power to gather information in 

mass on people? 

Mr. COLE. Yes, sir. I see very many limitations from both the 

Fourth Amendment and from the PATRIOT Act and from the FISA 

Act. There are many, many limitations that are put in and many, 

many checks and balances, both through the United States Congress and the courts. 

Mr. FARENTHOLD. All right. So let us go over a couple of those. 

I assume you would have to go to the FISA court, and those are 

one of the checks and balances. Could you go to the FISA court and 

argue that you had a right to obtain, say, either an individual’s or 

every American’s tax return. Could you argue that with a straight 

face? 

Mr. COLE. Well, I think they—— 

Mr. FARENTHOLD. I have got a long list of them. Yes or no. 

Mr. COLE. Any individual’s tax return, there are separate laws 

that cover the acquisition of tax returns. 

Mr. FARENTHOLD. All right. So you can get tax returns. Could 

you get at somebody’s permanent record from school? 

Mr. COLE. If it was relevant to the investigation, you could go to 

the FISA court and ask for that—— 

Mr. FARENTHOLD. Could you get somebody’s hotel records? 

Mr. COLE. If it was relevant to the investigation. 

Mr. FARENTHOLD. Could you get records of everybody who stayed 

in a particular hotel at any time? 

Mr. COLE. If you can demonstrate to the court that it is relevant 

to the investigation. 

Mr. FARENTHOLD. Okay. Could you—you could get my Visa/ 

Mastercard records? 

Mr. COLE. If I can demonstrate to the court that it is relevant—— 

Mr. FARENTHOLD. All right. Could you demonstrate, could you 

argue with a straight face you could demonstrate the court to create a database of everybody’s Visa and Mastercard, every financial 

transactions that happened in the country because Visa and 

Mastercard only keep those for a couple of years? 

Mr. COLE. Mr. Farenthold, that is all dependent on exactly what 

I am investigating and what the relevance of information would be 

and how it would be used and how it would be limited. All of those 

factors have to go into it. It is not a simple yes or no, black or 

white issue. It is a very complicated issue. 

Mr. FARENTHOLD. Could you get Google searches? 
51 

Mr. COLE. I am sorry, sir? 

Mr. FARENTHOLD. Could you get all the searches I made on a 

search engine? 

Mr. COLE. Again, it would depend. I would have to make a showing to the court that that kind of information was relevant to the 

investigation. 

Mr. FARENTHOLD. Could you get all Google searches and then 

come back and say we are going to search them later when we 

have got that information? 

Mr. COLE. It would depend on the way that I would be able to 

search them. And again, under 215 of these—of this statute that 

we are talking about, it is only if I can show that it is related to 

specific terrorist organizations. It is not for anything under the 

sun. 

Mr. FARENTHOLD. Can you get the GPS data from my phone, too, 

probably? 

Mr. COLE. I am sorry? 

Mr. FARENTHOLD. You can probably make a good argument for 

getting the GPS data out of my phones or the mappings off where 

I use on my phones, too? 

Mr. COLE. Again, there is great limitations on how I can do that 

and only if it is relevant to an investigation of those specific terrorist organizations. 

Mr. FARENTHOLD. All right. But how is having every phone call 

that I make to my wife, to my daughter relevant to any terror investigation? 

Mr. COLE. I don’t know that every call you make to your wife or 

your daughter—— 

Mr. FARENTHOLD. But you have got them. 

Mr. COLE. I don’t know that they would be relevant, and we 

would probably not seek to query them because we wouldn’t have 

the information that we would need to make that query. 

Mr. FARENTHOLD. But somebody like Mr. Snowden might be able 

to query them without your knowledge? 

Mr. COLE. I don’t believe that is true, but Mr. Inglis could answer that. I don’t think he would have access to that or be able to 

do it. 

Mr. FARENTHOLD. Okay. 

Mr. INGLIS. We don’t believe that he could query those without 

our knowledge, and therefore, those would be caught. 

Mr. FARENTHOLD. All right. That is slightly reassuring. 

The Fourth Amendment specifically was designed, as Judge Poe 

pointed out, to prohibit general warrants. How could collecting 

every piece of phone data be perceived as anything but a general 

warrant? 

Mr. COLE. Because the phone data, according to the Supreme 

Court, is not something within which citizens have a reasonable expectation of privacy. It belongs to the phone company. 

Mr. FARENTHOLD. So do I have a reasonable expectation of privacy in any information that I share with any company, my Google 

searches, the email I send? Do I have a reasonable expectation of 

privacy in anything, but maybe a letter I hand deliver to my wife 

in a skiff? 
52 

Mr. COLE. Those are all dependent on the facts and circumstances of the documents we are talking about. In the case of 

metadata, the Supreme Court specifically ruled that there was not 

coverage by the Fourth Amendment because of no reasonable expectation of privacy. 

Mr. FARENTHOLD. I just want to point out how concerned I am 

about this data being so easily available, and just with a stroke of 

a pen, Congress and the President could change the search criteria 

as to what is searched or change the definition of a terrorist or 

search—the fact that this data exists in the hands of the Government. We saw what the IRS has done with tax returns, targeting 

people for political belief. 

Let me ask you one other quick question. Why do these orders 

not violate the First Amendment? We have talked a lot about the 

Fourth Amendment, but why doesn’t it violate the First Amendment, my right to freedom of association and my freedom of speech, 

having the Government know who I am talking to and when? 

Mr. COLE. Again, these are issues that are looked at by the court 

in determining whether any constitutional rights are involved. We 

don’t know who it is that has a specific phone number that is being 

called under this. 

Mr. FARENTHOLD. And you can’t look that up on one page on the 

Internet? 

I yield back. 

Mr. GOWDY. The gentleman’s time has expired. 

The Chair will now recognize the gentleman from Florida, Mr. 

Deutch. 

Mr. DEUTCH. Thank you, Mr. Chairman. 

Mr. Chairman, like many Americans, I was shocked by the revelations that the NSA has been secretly collecting phone records, 

Internet data on millions of Americans, thanks to a lawfully issued 

warrant approved by the Foreign Intelligence Surveillance Court, 

often called the FISA court. Many Members of Congress, myself included, were left completely in the dark about the extent of the 

NSA’s data mining program, and I worry about the balance between legitimate national security needs and the constitutionally 

protected rights of all Americans. 

The Government is stockpiling sensitive personal data on a 

grand scale. Intelligence officers, contractors, and personnel only 

need a rubber stamp warrant from the FISA court to then learn 

virtually everything there is to know about an American citizen. 

The American people have a right to know about this program 

and at the very least know that such a program is operating within 

our system of checks and balances. And I believe Congress has a 

constitutional obligation to protect individual privacy rights, and I 

believe it is time to reexamine the PATRIOT Act, insert greater accountability into the FISA court, and ensure that our laws cannot 

be interpreted behind the backs of the American public. 

With this hearing, this Committee has begun this important 

work of oversight and repair, and I thank the Chairman and the 

Ranking Member for calling this hearing. I thank the witnesses as 

well for participating. 

Mr. Cole, I want to ask you about the October 2011 letter sent 

by then-Assistant Attorney General Ronald Weich to Senators 
53 

Wyden and Udall regarding Section 215. The disturbing information that Senators Wyden and Udall learned, however, was classified and was, thus, kept from the American public and even most 

Members of Congress. 

Now Mr. Weich seemed to imply in his response to Senators 

Wyden and Udall that because Congress, or at least a select number of Members of Congress anyway, received intelligence briefings 

in accordance with the PATRIOT Act that there is no cause for 

alarm that the Government was using some sort of secret law, secret law to expand its surveillance activities. 

Now the PATRIOT Act was passed in response to the horrific attacks on 9/11, designed to bolster national security by expanding 

the investigative techniques used by the Government and law enforcement officials to hunt down suspected terrorists, something 

that we all agree is important. But Section 215 had a standard of 

relevance, and there had to be concrete information linking a person to a terrorist organization before the NSA could secure that 

person’s information. 

Instead, what we have learned is that the FISA court has essentially rewritten Section 215 to say that any and all person’s records 

may be considered relevant, therefore allowing the NSA to indiscriminately collect sensitive data on all Americans. The fact is in 

2012, the Government made 1,789 requests to conduct electronic 

surveillance. The court approved 1,788, and the Government withdrew the other. 

Now as a Member of Congress who was not privy to those intelligence briefings, I had to accept Mr. Weich’s assurance that there 

is no secret law. But in the aftermath of these recent leaks, however, it seems that there may be secret laws. Laws not passed by 

Congress. Laws not publicly interpreted by the Supreme Court, but 

rather secret laws born out of a classified interpretation of the PATRIOT Act by the FISA court. 

The New York Times recently reported that the FISA court has 

quietly become almost a parallel Supreme Court, serving as the ultimate arbiter on surveillance issues. I would point out with only 

the arguments of the Federal Government alone to be considered. 

Now even a former FISA judge has come forward with concerns 

that the body has become a de facto administrative agency, which 

makes and approves rules for others to follow. Now that it has become public that FISA courts have broadly, perhaps even unconstitutionally, redefined the relevance standard in Section 215, is it 

still the department’s position that the Government isn’t essentially operating with a secret playbook? 

Mr. COLE. Mr. Deutch, I don’t think we are operating with a secret playbook. There is, again, as we have discussed in many instances in our hearing today, the tension that exists between maintaining the integrity and the secrecy of some of the national security investigative tools that we use and making sure that people 

know about it. 

We have, in the course of the reauthorization of the PATRIOT 

Act, on several occasions done classified briefings, made individual—— 

Mr. DEUTCH. Mr. Cole, I am sorry to cut you off, but I only have 

a second left. Let me just broaden the question then for a second 
54 

because I am speaking about these decisions that the FISA courts 

make as the supreme arbiter of this law. 

And stepping back for a moment at a more basic level, does the 

panel understand why the American people may find this revelation shocking, that secret court rulings could expand the powers of 

the Federal Government beyond perhaps what was originally authorized by law and that an entire chapter in our laws is being 

written outside of the three branches of Government altogether? 

Mr. COLE. I think, again, this is an area where we are looking 

to see what kinds of opinions from the FISA court we can make 

public. These are things that we are trying to do and trying to go 

through. 

All significant opinions and all significant pleadings that have 

been filed with the FISA court are made available to the Committees, to the Intelligence Committee and Judiciary Committee, so 

they can see them. We are not trying to keep them secret. We are 

just trying to maintain the classified nature of some of these. 

But these are issues that we are trying to grapple with and trying to determine what we can let out so that we can have this 

broader discussion. 

Mr. GOWDY. I thank the gentleman from Florida. 

The Chair would now recognize the gentleman from North Carolina, the former United States attorney, Mr. Holding. 

Mr. HOLDING. Thank you, Mr. Chairman. 

In a different professional capacity, I successfully used FISA warrants to investigate, disrupt, and prosecute terrorists and terrorist 

acts, and I can attest that not only are they effective, but there are 

very high burdens and hurdles to use FISA warrants. And they are 

significant. 

But I want to step for the few moments that I have outside of 

the prosecution of terrorism and investigation of terrorism and just 

talk about the use of telephone records in everyday, garden-variety 

criminal cases, whether they are public corruption cases, fraud 

cases, drug cases. And Mr. Cole, I will direct my questions to you. 

If you could step through for us how the Department of Justice 

prosecutors and investigative agencies obtain telephone records 

just in garden-variety cases and how they are ultimately used? 

Mr. COLE. There are two different ways we do it, pursuant to the 

law. Historical telephone records that exist for prior calls we can 

get with grand jury subpoenas in a normal criminal case. Those 

can be issued by a prosecutor, delivered to the telephone provider, 

and ask for a range of data. 

Mr. HOLDING. So no judicial involvement, just a grand jury involved? 

Mr. COLE. There is no judicial involvement, just the grand jury 

involvement, and the prosecutor defines the scope and the nature 

and the numbers that are involved. 

Mr. HOLDING. So the prosecutor could request telephone records 

going back as long as they want to, the only limitation being does 

the telephone company still have those records? 

Mr. COLE. There would be one additional limitation. The telephone company could challenge the subpoena as being overly burdensome and irrelevant to any reasonable investigation, and the 
55 

court could take that up, which would be in a sealed proceeding because it is a grand jury proceeding. So it wouldn’t be public. 

Mr. HOLDING. And what would the standard be that the judge 

would use to evaluate the motion to quash? 

Mr. COLE. Generally, relevance to the investigation. 

Mr. HOLDING. So the Fourth Amendment doesn’t come into play 

there? 

Mr. COLE. Not for telephone records. It does not. 

Mr. HOLDING. And this is available to prosecutors, Federal prosecutors across the country? 

Mr. COLE. Yes, it is. 

Mr. HOLDING. And the only showing that they have to make to 

the grand jury is what, that it is relevant? 

Mr. COLE. That it is relevant. 

Mr. HOLDING. And once you have gotten the telephone records 

and it shows let us say hits between the person, the subject that 

you are investigating and a relevant other person in the investigation, then what do you do to start listening to those telephone 

calls? 

Mr. COLE. Well, if we wanted to listen to any telephone calls, and 

that would obviously be just telephone calls that would start happening into the future, we would have to go to the court and seek 

authorization under Title III of the U.S. Code to get a wiretap. And 

we would have to show probable cause to believe that, in fact, the 

person talking on the phone was involved in criminal activity and 

that through that phone they were discussing criminal activity. 

And we would obtain evidence of that criminal activity by listening 

to the calls. 

Mr. HOLDING. Would you hazard to make a guess of how many 

wiretaps are in use on a daily basis? 

Mr. COLE. I couldn’t hazard a guess, but there are a fair number 

of them. 

Mr. HOLDING. Probably hundreds perhaps? 

Mr. COLE. Probably. 

Mr. HOLDING. As far as my friend Mr. Scott was talking about, 

if you find evidence of some other criminal conduct during an investigation, let us say during a Title III wiretap, you are investigating one crime, you hear a conversation that suggests that another crime is being committed, are there any limitations on use? 

Mr. COLE. Generally not, other than the restrictions on how you 

can use wiretap information. There are restrictions on that and the 

secrecy that is involved in those and the protection of innocent 

calls. But generally, you can use that information if it relates to 

other criminal conduct, according to the rules of procedure in the 

law. 

Mr. HOLDING. So in my take-away, having heard you describe in 

detail how the 215 program works and the 702 program works, the 

restrictions and the limitations on use from those two programs is 

much more restrictive and limited than what prosecutors and law 

enforcement are using on a daily basis throughout the United 

States investigating garden-variety crimes being committed by U.S. 

citizens? 

Mr. COLE. In the main, there are some differences here and 

there. For example, the burden to get a wiretap may be a higher 
56 

burden than for 702 coverage, but it is a different burden if we 

wanted to do a FISA for somebody in the United States. That 

would be, again, a probable cause standard, but probable cause 

that they are involved in foreign intelligence. 

Mr. HOLDING. Thank you, Mr. Chairman. I yield back. 

Mr. GOWDY. I thank the gentleman from North Carolina. 

The Chair will now recognize the gentlelady from Washington, 

Ms. DelBene. 

Ms. DELBENE. Thank you, Mr. Chair, and thank all of you for 

being here today. 

Last month, when Director Mueller appeared before this Committee, I stated that I agree with those who believe that greater 

transparency about the requests that governmental entities are 

making to Internet companies and providers will help inform the 

discussion that we are having on balancing national security with 

privacy rights and civil liberties. 

And one of the questions that I asked the Director was how the 

FBI and the Department of Justice will respond to the request by 

Google that it be permitted to provide reports of the number of 

FISA national security requests it receives, as well as their scope. 

And at the time, Director Mueller noted that this was being 

looked at. And so, I was wondering, Mr. Cole, if you are able to 

share with us what the response is to this request? 

Mr. COLE. Unfortunately, this is a matter that is currently before 

the court. It is in litigation. So I can’t say too much about it, other 

than to reiterate what Director Mueller said, which is this is a 

matter that we are, in fact, looking at and take seriously. 

Ms. DELBENE. Now we do have some data that is out there already because in March of this year, Google worked with—I believe 

Google worked with the DOJ and the FBI to disclose in broad 

strokes the number of national security letters that Google receives. Correct? 

Mr. COLE. That is correct. 

Ms. DELBENE. And so, we do have some information. Do we 

know whether that information that was released has had any impact on national security? 

Mr. COLE. Generally, it is hard to tell unless you have a substantial period of time afterwards as to whether or not it has an impact. So we haven’t had enough time yet. 

Ms. DELBENE. Okay, thank you. 

The public also now knows that the telephone metadata collection is under Section 215, the business records provision of FISA, 

and that allows for the collection of tangible things. But we have 

also seen reports of a now-defunct program collecting email 

metadata. 

With regard to the email metadata program that is no longer 

being operated, can you confirm that the authority used to collect 

that data was also Section 215? 

Mr. COLE. It was not. It was the pen register trap and trace authority under FISA, which is slightly different. But it amounts to 

the same kind of thing. It does not involve any content. It is, again, 

only to and from. 
57 

It doesn’t involve, I believe, information about identity. It is just 

email addresses. So it is very similar, but not under the same provision. 

Ms. DELBENE. And could you have used Section 215 to collect 

that information? 

Mr. COLE. Hard to tell. I would have to take a look at that. 

Ms. DELBENE. Because I think it is important for us to know 

whether or not there is any limitations on the types of information 

within Section 215 that prevent you from collecting whether it is 

email metadata or GPS and geolocation information, et cetera. How 

broad is that authority? 

Mr. COLE. Again, it is only as broad as what the courts can find 

under 215 that is relevant. But there are different authorities in 

FISA. So we would have to look to see how those all work together. 

Ms. DELBENE. Mr. Litt, were you going to—— 

Mr. LITT. No, I was just going to say that it is important to remember that the 215 authority allows you to acquire existing 

records and documents, and it is limited to that. 

Ms. DELBENE. Although you could argue that geolocation information may also be existing, and would you consider that to be 

metadata as well? 

Mr. LITT. I think that the Director of the National Security Agency has stated that we are not collecting that under Section 215 and 

that we will come to the Congress and consult with the Congress 

before any decision was made to do so. 

Ms. DELBENE. But you understand it is important for us to know 

what the breadth and limitations are, as we look at policy. And 

clearly, there is some confusion here right now. So we need to understand how it is being used and what information might be being 

collected so we can make sure intent is delivered appropriately. 

So I agree with the President’s view that we need to set up a national conversation on balancing privacy and security. But in order 

to have that conversation, have a productive conversation, we need 

information that is going to help fuel that conversation, information like the breadth of Section 215, et cetera. And so, I hope we 

can continue that and have—and get access to more information so 

that we can have a productive discussion going forward. 

And thank you for your time. I yield back. 

Mr. GOWDY. Thank the gentlelady from Washington. 

The Chair would now recognize the gentleman from Texas, Judge 

Gohmert. 

Mr. GOHMERT. Thank you, Mr. Chairman. 

In answer to some of the other questions, you have provided an 

adequate defense. The trouble is we have seen the abuses of Government. We have seen the gathering of data. And I can tell you 

from having been here not when the PATRIOT Act was passed 

originally, but when it was extended back in my first term in Congress, it got down to where there were only two Republicans demanding any type of safeguard, I thought. And there were two of 

us that wanted sunsets. 

I was the one that argued for 25 minutes in our 30-minute prehearing meeting demanding sunsets, and then my friend Dan Lungren had the amendments. And we got at least two sunsets on 206 

and 215. And the argument I made for 25 minutes that turned my 
58 

colleagues, Republicans, around in our meeting was I have seen 

how there can be violations of due process if everyone is not very 

diligent, and we need the safeguards in order to have proper oversight. 

And what we have seen and what has been disclosed of the monitoring scares me. We have had hearings in this room. People like 

Jerry Nadler have argued about dangers of Government having too 

much information. And from my experience as a judge and chief 

justice with State judges and Federal judges and having practiced 

before a very conservative Federal judge named Bill Steger and a 

very liberal judge named William Wayne Justice, I couldn’t imagine anybody granting the kind of orders we have now seen granted. 

Just a blanket summary, go get all of these phone records. 

And I understand the assurances, no, we don’t have names with 

them. But isn’t it true that you can go on public or private data, 

any individual, and secure the names for different numbers? Isn’t 

that true? 

Mr. COLE. There are ways to secure the names for any number 

of numbers, maybe not every single one. 

Mr. GOHMERT. And I recall back in 2002, as a chief justice at a 

conference, getting into a debate with a CIA lawyer who was arguing, look, banks have all your financial records. Why shouldn’t the 

Government? 

And I was pointing out as a conservative it is because banks 

can’t show up at your house, put you in handcuffs, throw you to 

the ground, and drag you off to jail, which has been done by the 

Government. So there is an important distinction. 

And then we find out that though many of us opposed it, the 

Consumer Financial Protection Bureau has been gathering information on everybody’s financial records. But they say the same 

thing that most of you are saying, look, we are not putting the 

names with it. But isn’t it true that the Federal—that even the 

NSA can get access to the information gathered by the Consumer 

Financial Protection Bureau? 

Mr. INGLIS. Sir, I imagine that could be true, but I would say 

that we can’t pull the telephone numbers from this database under 

any circumstances other than that prescribed by the court. 

Mr. GOHMERT. But you are entitled to go—I mean, we have had 

this debate in here. You are entitled to go on the Internet or go 

to private sources that any private citizen could and gather that information without violating any constitutional rights. Isn’t that correct? 

Mr. INGLIS. Certainly. But if the premise is we would do that to 

match names, identification, personal information against the telephone numbers, we don’t have access to the telephone numbers unless we follow the prescribed rules of the court, pursuant to a terrorism investigation. 

Mr. GOHMERT. But if you can gather the information that a private individual could and couple that with information that only 

the Federal Government we are now learning is gathering, then it 

really constitutes a grave threat to privacy. By the way, the Consumer Financial Protection Bureau said this, their Director said 

this in testimony before Congress. 
59 

The bureau has also issued regulations that limit the circumstance in which it may disseminate internally, share with other 

agencies, or disclose the public confidential information, share with 

other agencies. So they know they can share with other agencies 

if another agency or they feel it is helpful. 

This begins to be a little scary, and the justification we get seems 

to be, well, but look, there are a handful of cases where we have 

avoided terrorism by really gathering all this private information. 

And it makes me think how many times could King George III 

have argued that, look, by putting officers in every one of your 

homes that we were uncomfortable with, we ended up being able 

to avoid a couple of problems of violence. 

We don’t want people in our homes, and that includes the Federal Government watching through a big eye through our computers. 

And I appreciate you being here today. Thank you. 

Mr. GOWDY. Thank the gentleman from Texas. 

The Chair would now recognize the gentleman from New York, 

Mr. Jeffries. 

Mr. JEFFRIES. Thank you. 

Mr. Cole, am I correct that it is your position and the position 

of everyone on the panel that the telephone records of potentially 

hundreds of millions of Americans in the form of metadata, as has 

been discussed today, is relevant to a national security investigation? 

Mr. COLE. They are relevant when they are only queried under 

the limitations that are described by the court, where you have to 

have reasonable, articulable suspicion that the phone numbert is 

connected to some terrorist matter and investigation. 

Mr. JEFFRIES. So, fundamentally, it is your position that they are 

relevant because the court, the FISA court has articulated a set of 

criteria by which further inquiry can be undertaken. Is that correct? 

Mr. COLE. They are. And they are relevant because you have to 

have the—it is the old adage of if you are looking for the needle 

in the haystack, you have to have the entire haystack to look 

through. But we are not allowed to look through that haystack 

willy-nilly. 

Mr. JEFFRIES. Right. Now in terms of looking through that haystack of these phone records that are acquired based on reasonable, 

articulable suspicion, am I correct that it is 22 NSA individuals 

who are authorized to make the determination of reasonable, 

articulable suspicion? Is that right? 

Mr. COLE. I will give that to Mr. Inglis to give you the numbers. 

Mr. INGLIS. That is correct, sir. 

Mr. JEFFRIES. Okay. So these individuals don’t have to go back 

to the court in order to determine whether they can move forward 

with a more invasive inspection of the phone records of the Americans contained in the database that you have acquired. Is that correct? 

Mr. INGLIS. They use the rules of the court to make the limited 

query that the court—— 
60 

Mr. JEFFRIES. Right. They are using the rules of the court, but 

they are making the determination, not the court, as to the 

invasiveness of the further inspection. Am I correct? 

Mr. INGLIS. On a case-by-case basis, they determine the selector. 

Mr. JEFFRIES. Okay. Now, Mr. Litt, you have indicated that in 

your view, the FISA court is not a rubber stamp. Correct? That was 

your testimony? 

Mr. LITT. That is correct. 

Mr. JEFFRIES. And I think in response to the distinguished gentleman from Idaho, you said, well, it is not a rubber stamp because 

they read. They ask questions. They pushback. There is careful 

study and analysis. Is that an accurate characterization of your testimony? 

Mr. LITT. Reasonably accurate. Yes, sir. 

Mr. JEFFRIES. Okay. Now we just had the baseball all-star game 

yesterday, and of course, we know nothing is as American as baseball and apple pie. And if you think back on the history of baseball, 

I just took a quick look. I am a baseball fan myself. 

Now Stan ‘‘the man’’ Musial, great hitter from St. Louis, his batting average lifetime, he was close to being in the top 25, .331, 

Stan ‘‘the man’’ Musial. 

Babe Ruth, 10th all time. His lifetime batting average was .342. 

Ted Williams, the great lefty from the Boston Red Sox, his lifetime 

batting average was .344. Ty Cobb, the Georgia peach—I may disagree with some of his views on social justice issues, but he was 

a great hitter. The number-one hitter all time—— 

Mr. LITT. .363? 

Mr. JEFFRIES [continuing]. Based on average, .366. [Laughter.] 

Mr. JEFFRIES. Pretty impressive, though, but I am still going to 

continue to ask you questions about this dynamic. 

Now I took a look. So these are the greatest hitters of all time. 

I took a look at what your batting average is as it relates to the 

FISA court, and I am a little troubled at what we were able to determine. 

So am I correct that in terms of the total applications submitted 

since 1979, there were 33,949 applications submitted. Is that accurate? 

Mr. LITT. I don’t know the number. I wouldn’t disagree with your 

number. I just don’t know it off the top of my head. 

Mr. JEFFRIES. Okay. And of that total number of applications, 

490 it appears were modified. Is that correct? You have no reason 

to disagree with that number. Is that right? 

Mr. LITT. Again, I don’t know the answer. 

Mr. JEFFRIES. Okay. So—— 

Mr. LITT. But if I can just add one—— 

Mr. JEFFRIES. Well, let me just make an observation. 

Mr. LITT. Okay. 

Mr. JEFFRIES. And I have got limited time here. One-point-four 

percent of the total number of applications made were modified. 

But what is even more troubling, since 1979, 11 applications were 

denied. Is that correct, 11? 

Mr. LITT. Again, I will take your word for that. 

Mr. JEFFRIES. Okay. So your success rate, your batting average, 

was 99 percent of the time that you have applied to acquire infor-
61 

mation that could possibly include communication from one American to another American, yet you have taken the position that the 

FISA court is an independent check to protect the civil liberties 

and constitutional rights of Americans. Is that correct? 

Mr. LITT. So I guess the answer is that we are not exactly talking about baseball here. We have a—if you imagine a situation 

where the kind of interaction we have with the FISA court is the 

FISA court throws a pitch, and we don’t hit it. And the court says 

we want the pitch a little bit higher. Can you throw the pitch a 

little bit higher? And it is still not right. So make it a little more 

inside. 

That is the interaction we have with the FISA court. They come 

back to us and tell us what we need to do to submit an application 

that will get approved. 

Mr. JEFFRIES. Right. Those modifications, and I know my time 

has run out, only took place 1.4 percent of the times, and that is 

why I think we are all concerned, or many of us are concerned that 

there is not an appropriate check on behalf of the Americans whose 

records could be subjected to an invasive search. 

I thank you all for your service, yield back the balance of my 

time. 

Mr. LITT. May I say one thing briefly, Mr. Chairman? 

Mr. GOWDY. Sure. 

Mr. LITT. The number for modification there I think does not reflect the full number of times in which the court asks questions 

and comes back to us. My understanding is that that is simply— 

that comes at the very end of the process, but there is a substantial 

give and take before we get to that point. So that is not a full reflection. 

Mr. GOWDY. The Chair thanks the gentleman from New York 

and now recognizes the gentleman from Utah, Mr. Chaffetz. 

Mr. CHAFFETZ. I thank the Chairman. 

And I thank the four of you for your service. I know how much 

you care for your country, and we do as well, and appreciate the 

dialogue. It is what differentiates the United States of America 

from most others. 

So, Mr. Cole, is geolocation information metadata, or is it content? 

Mr. COLE. That is an area of the law that is, I think, evolving 

in light of the Jones case, and it is one that I think the courts are 

now grappling with. It is not clearly as—— 

Mr. CHAFFETZ. The courts—the courts did rule in the Jones case 

9-0. They were pretty clear. Justice Alito was also fairly clear that 

Congress needed to grapple with this as well. Has the Department 

of Justice issued any guidance on Jones? 

Mr. COLE. We are in the process of looking through that. Jones 

was based mostly on a trespass—— 

Mr. CHAFFETZ. I know what it was. 

Mr. COLE [continuing]. Opposed to a search and seizure. 

Mr. CHAFFETZ. Have you issued any guidance on Jones? 

Mr. COLE. We are in the process of looking through that to do 

it. 

Mr. CHAFFETZ. That is not an accurate answer. My understanding is there are at least two documents that the Department 
62 

of Justice has issued to the Federal Bureau of Investigations, for 

instance. It was uncovered through a FOIA request. Almost every 

page of this was redacted. 

So you have, indeed, actually issued guidance on Jones. Correct? 

Mr. COLE. I will stand to be corrected. If you have those, yes. 

Mr. CHAFFETZ. Will the Department of Justice provide to this 

body, to this Committee, the guidance on Jones? 

Mr. COLE. That is something we will have to look into. There are 

lots of law enforcement—— 

Mr. CHAFFETZ. No, no, no. Wait a second. I know there are law 

enforcement issues. I know there are other things. Why would you 

not provide to the United States Congress, the Committee on the 

Judiciary, why would you not provide a copy of that guidance for 

this Committee? 

Mr. COLE. If it discloses law enforcement sensitive information 

and techniques of how we go about fighting crime and finding 

criminals, then we may not feel free to disclose it. 

Mr. CHAFFETZ. And to the Chairman of this Committee, I think 

this is one of the great concerns. So let me ask you again, is 

geolocation metadata, or is it content? 

Mr. COLE. It is not content, as that would be called. It doesn’t 

give you the content of anybody’s calls. All it gives you is information about where they are. 

Mr. CHAFFETZ. So you are saying, in other words, that 

geolocation you would classify as metadata? 

Mr. COLE. I am not sure that it is one or the other. I think there 

are times where there are things that are in between, and this may 

be one of those. It is certainly not content. It probably tends more 

toward metadata. But again, this is an evolving area of the law. 

Mr. CHAFFETZ. How is it evolving? I mean, we haven’t—this is 

what scares me about what you are doing and how you are doing 

it. If you knew exactly where I was standing, you are telling me 

that that is not content? 

Mr. COLE. That is not the content of your conversation, no. And 

other people may see you—— 

Mr. CHAFFETZ. So the content—— 

Mr. COLE. If you are standing out in public, any number of other 

people may see you there. 

Mr. CHAFFETZ. So, but if I was standing on private property? 

Mr. COLE. This is part of what Jones talks about is the trespass 

issue. 

Mr. CHAFFETZ. And they ruled 9-0 that it was an overstep and 

an overreach. So are you collecting that data? 

Mr. COLE. We are not collecting that data. 

Mr. CHAFFETZ. Let me ask the NSA. Is the NSA collecting this 

data? 

Mr. INGLIS. We are not collecting that data under this program. 

We believe that the authority could be granted by the courts to collect that attribute. We have not done that, and as Mr. Cole and 

Litt indicated earlier, the Director of NSA has given an affirmation 

to the Congress that before such time as we would reconsider that 

decision, we would come back to the Congress. 

Mr. CHAFFETZ. How—going back to you, Mr. Cole. What other 

bits of information fall in this gap between metadata and content? 
63 

What is this third category that you are talking about? What is the 

right word for it? 

Mr. COLE. I am not sure. It is just a third category, Mr. Chaffetz. 

I think there is metadata that was described by the court in Smith 

v. Maryland, which is the telephone records that we have been 

talking about today that were covered by the 215 program that we 

have been discussing today. 

There is content, which is the actual—the conversations themselves that people have, and there are any number of things that 

may fall in between those, and it is not just a third category. It is 

probably a continuum. 

Mr. CHAFFETZ. What else would be in that continuum? 

Mr. COLE. I am sorry, sir? 

Mr. CHAFFETZ. What else would be in that continuum? 

Mr. COLE. It is hard for me to just hypothesize about all the 

many different things that could be out there and where they 

would fall in that continuum. 

Mr. CHAFFETZ. There is a report out today about license plates 

and that information that is being collected by thousands of camera 

readers and stored about specific location. Does that fall within this 

category? 

Mr. COLE. In which category? 

Mr. CHAFFETZ. License plate readers. 

Mr. COLE. The whole issue comes down to the reasonable expectation of privacy, and this is what the court bases its rulings on. 

Mr. CHAFFETZ. Do you believe that I have a reasonable expectation of privacy about my specific whereabouts? 

Mr. COLE. It depends on where you are and how many other people see you as—— 

Mr. CHAFFETZ. Do I have a reasonable expectation of privacy on 

private property? 

Mr. COLE. In general, I think the courts are saying that there is 

a trespass theory that gives you a reasonable expectation of privacy, depending on whose property it is, whether it is your own or 

somebody else’s, how many other people are there. These are all 

the types of issues that would go into that. 

Mr. CHAFFETZ. My time is expired. But, Mr. Chairman, this is 

something we have to much more thoroughly understand. There is 

guidance out there, and I think this Committee should be able to 

see it. 

Yield back. 

Mr. GOODLATTE [presiding]. We are working our way in that direction, and there will be another hearing. You will be able to ask 

even more questions in a classified manner about questions you 

couldn’t get answered here. 

So we thank the gentleman, and the Chair now recognizes the 

gentleman from South Carolina, Mr. Gowdy, and thanks him for 

presiding for a period of time as well. 

Mr. GOWDY. Thank you, Mr. Chairman. 

I was listening to my colleagues and our witnesses discuss these 

issues, and for whatever reason, Mr. Chairman, my mind went to 

a guy by the name of Joseph Hartzler. I don’t know whether he is 

still with the department or the U.S. attorney’s office or not. He 
64 

was the lead prosecutor in a case called United States v. Timothy 

McVeigh. 

And I thought to a presentation that Mr. Hartzler gave many 

years ago and the role that business records played in his ability 

to successfully prosecute that horrific act of domestic terrorism. 

And Mr. Chairman, I thought to myself, all right, we asked you, 

Mr. Hartzler, to prosecute the crime after it took place. What if we 

challenged you with the responsibility to prevent the next act of 

terrorism? What tools would you need to be able to prevent crime, 

as opposed to prosecute it in its aftermath? 

And while this is at some level a debate between privacy and 

public safety, to me, it is also a debate between the difference between prosecuting something after it happens and then preventing 

it from happening in the first place. Mr. Hartzler used hotel 

records. He used business records where McVeigh went and purchased certain materials. He used—that was a very tedious, difficult case to prosecute, and the role of the business records played 

in it. 

So this is what I would like to ask. I don’t want to ask specific 

questions about the sections. I want to go to where the people of 

my district are who are not trained attorneys for the most part, 

trained law enforcement officials. 

Mr. Litt, you would agree that the Constitution kind of sets the 

minimum standard by which Government must conduct itself—— 

Mr. LITT. Yes, sir. 

Mr. GOWDY [continuing]. Is the minimum standard? 

Mr. LITT. Yes, sir. And Congress has the power to set higher 

standards. 

Mr. GOWDY. Exactly. So, in Roper v. Simmons, if the Supreme 

Court says you cannot put someone to death who was under the 

age of 18 at the time that they committed the offense, that does 

not keep Congress from saying we are going to raise it to 21? 

Mr. LITT. That is correct. 

Mr. GOWDY. Right. So who does get to decide whether or not our 

fellow citizens have a reasonable expectation of privacy? 

Mr. LITT. It depends upon the purpose for which you are deciding 

it. For purpose of interpreting the provisions of the Fourth Amendment, as the Fourth Amendment, the Supreme Court is the ultimate arbiter. For purposes of determining what is the appropriate 

behavior, how do you want to regulate the actions of Government, 

that is Congress’ role—— 

Mr. GOWDY. Well, I want to stop you. You say the Supreme 

Court is the ultimate arbiter. Are they the exclusive arbiter? Can 

the people weigh in on what they think they have a reasonable expectation of privacy in? 

Mr. LITT. Absolutely. But—— 

Mr. GOWDY. Well, the Supreme Court doesn’t have the benefit of 

public input. 

Mr. LITT. Generally speaking, the public manages to get its voice 

heard in case in—— 

Mr. GOWDY. Well, I would hope they would listen to it. I mean, 

their job is not to weigh and balance—to Jason’s point, if you are 

on private property but there is a helicopter above versus if you are 
65 

on private property and there are four other people at the picnic 

with you, I mean, you have no expectation of privacy in your face. 

I don’t think anyone would argue you have an expectation of privacy in your face. But that does not mean that our fellow citizens 

want Government to collect facial imagery data. 

Mr. LITT. You know, I think that is exactly the right way to 

frame it, which is to say that the Fourth Amendment, as interpreted by the court, sets the minimum constitutional standard, but 

that the Congress, based on input from the people and whatever 

sources, can determine, no, this is how we want to regulate the behavior of our Government. And that set of regulations that we need 

to adhere to. 

Mr. GOWDY. And technology can impact that. Agree technology 

can impact that? 

Mr. LITT. I am sorry? 

Mr. GOWDY. Technology? Technology can impact someone’s reasonable expectation of privacy? 

Mr. LITT. Oh, absolutely. 

Mr. GOWDY. Culture? 

Mr. LITT. Yes. All of those factors come into play. 

Mr. GOWDY. I mean, there are already currently business records 

that an AUSA cannot access with a subpoena. Unless the world 

has changed, you can’t get medical records with a subpoena. 

Mr. LITT. Right. There are statutory restrictions on what you can 

get. 

Mr. GOWDY. You can’t get IRS tax returns with a subpoena. 

Mr. LITT. That is right. You have got to go through a more elaborate process. 

Mr. GOWDY. Both of those are business records, right? 

Mr. LITT. That is correct. 

Mr. GOWDY. So the notion that Miller stands for the proposition 

that all business records you have no expectation of privacy because there was a third party involved, we just came up with two 

examples where that is not the case. 

Mr. LITT. Well, again, that was a case interpreting what the 

Fourth Amendment meant. The other examples you have given are 

cases where, as you said, Congress has gone beyond the minimum 

requirement—— 

Mr. GOWDY. But there was also a statute in play in Miller. There 

was a banking statute in play in Miller. You have read it more recently than I have. But—— 

Mr. LITT. No, I—— 

Mr. GOWDY. My point—my time is up. My point is this. All of us 

are asked back home by people who are not as well trained in the 

law as you all are, and there is this growing skepticism about the 

conduct of Government. And to the extent that the people can 

weigh in on what they have an expectation of privacy in, you can 

expect to see that scale balance back toward privacy and away 

from public safety unless we do a better job of regaining their trust 

and explaining why these programs are necessary. 

Mr. LITT. So I couldn’t agree with you more. I think that is absolutely right. I think as Deputy Director Inglis said before, in the 

intelligence community, we try very hard to keep in mind both the 
66 

protection of national security and the privacy and constitutional 

rights of Americans. 

We think we have struck that balance in the right place, but if 

the people and the Congress determine that we struck that balance 

in the wrong place, that is a discussion that we need to have. 

Mr. GOWDY. Thank you, Mr. Chairman. 

Mr. GOODLATTE. The Chair thanks the gentleman. 

And on that note, we thank this panel for giving a lot of answers. 

I think there are some that could not be answered here today, and 

therefore, you might anticipate that we will have a subsequent 

hearing in a classified setting and ask additional questions. 

Whether it is of you four or something else, I don’t know, but I 

want to thank each one of you for helping us to engage in a very 

thorough examination of the issues related to these two sections of 

the law and excuse you now. 

Thank you again. 

[Pause.] 

Mr. GOODLATTE. Folks, if we could ask everyone to clear the 

hearing room, we are going to start with our second panel. No, just 

clear the area around the witness table. 

And we would now invite our second panel to take their seats. 

And once you have taken your seats, we will invite you to stand 

back up again and be sworn. 

So we will welcome our second panel and ask that each of you 

rise and be sworn in. 

[Witnesses sworn.] 

Mr. GOODLATTE. Thank you very much. 

Let the record reflect that all the witnesses responded in the affirmative, and we will now introduce our witnesses. 

Our first witness is Mr. Stewart Baker, a partner at Steptoe & 

Johnson law firm here in Washington, D.C. And we would ask that 

the door in the back be closed so we can have a little more—— 

Mr. Stewart Baker is a partner at Steptoe & Johnson here in 

Washington, D.C. Mr. Baker also serves as a distinguished visiting 

fellow at the Center for Strategic and International Studies. Previously, he served as the First Assistant Secretary for Policy at the 

U.S. Department of Homeland Security. 

He also served as general counsel of the NSA, where he led NSA 

and interagency efforts to reform commercial encryption and computer security law and policy. Mr. Baker has been a visiting fellow 

at the Hoover Institution and a fellow of the University Center for 

National Security Law. 

Mr. Baker received his bachelor’s degree from Brown University 

and his J.D. from the UCLA School of Law, where he was chief articles editor of the UCLA Law Review. And we are very fortunate 

to have him and his expertise with us today. 

Our second witness is Mr. Jameel Jaffer, Deputy Legal Director 

of the American Civil Liberties Union and also serves as Director 

of the group’s Center for Democracy. Mr. Jaffer previously directed 

the ACLU’s National Security Project. Prior to joining the ACLU, 

Mr. Jaffer clerked for Amalya Kearse, the U.S. Circuit Court of Appeals for the Second Circuit, and the Right Honorable Beverley 

McLachlin, Chief Justice of Canada. 
67 

Mr. Jaffer earned degrees from Williams College, Cambridge 

University, and Harvard Law School, and we welcome his expertise 

and experience as well. 

Our third witness today is Mr. Steven G. Bradbury, an attorney 

at Dechert, LLP, here in Washington, D.C. Formerly, Mr. Bradbury 

headed the Office of Legal Counsel in the U.S. Department of Justice during the Administration of George W. Bush, handling legal 

issues relating to the FISA court and the authorities of the National Security Agency. He served as a law clerk for Justice Clarence Thomas on the Supreme Court of the United States and for 

Judge James L. Buckley of the United States Court of Appeals for 

the D.C. Circuit. 

Mr. Bradbury is an alumnus of Stanford University and graduated magna cum laude from Michigan Law School. We thank him 

for serving as a witness today and look forward to his insight into 

this complex topic. 

Our final witness on the first panel is Ms. Kate Martin, Director 

of the Center for National Security Studies since 1992. She was formerly a lecturer at Georgetown University Law School and has also 

worked in the position of general counsel to the National Security 

Archive. She is currently a member of Constitution Project’s bipartisan Liberty and Security Committee. 

Previously, Ms. Martin was a partner with the Washington, D.C., 

law firm of Nussbaum, Owen & Webster. She graduated from the 

University of Virginia Law School, where she was a member of the 

Law Review and from Pomona College with B.A. in philosophy. We 

welcome her dedication and expertise in this area. 

Thank you all for joining us, and we will begin with Mr. Baker. 

Each witness should summarize his or her testimony in 5 minutes 

or less. Your entire statement will be made a part of the record. 

And to help you stay within that time, there is a timing light on 

your table. 

When the light switches from green to yellow, you will have 1 

minute to conclude your testimony. When the light turns red, it 

signals that the witness’s 5 minutes have expired. 

Mr. Baker, welcome. 

TESTIMONY OF STEWART A. BAKER, 

STEPTOE & JOHNSON, LLP 

Mr. BAKER. Thank you, Mr. Chairman. 

Mr. GOODLATTE. You may want to pull the microphone close and 

turn it on. 

Mr. BAKER. Thank you, Mr. Chairman and Ranking Member 

Conyers. Yes, thank you very much. 

It is a pleasure to be here, and I will say that this is not as unprecedented a climate as it may seem. I thought I would take advantage of the fact that it is my birthday to talk a little about the 

history of FISA. Here is a quote from the Cato Institute. 

‘‘If constitutional report cards were handed out to Presidents, the 

President would receive an F, an appalling grade for any President, 

let alone a former professor of constitutional law.’’ 

About the same time that they were saying that, the FISA court 

judge, chief judge, felt obliged to say, ‘‘We are not a rubber stamp. 

I carefully review every one of these applications.’’ 
68 

This was the second term of Bill Clinton when many of these 

criticisms were very prominent. And quite frankly, I think they 

contributed to the FISA court at the time adopting, it turns out 

without legal justification, a set of restrictions on the conduct of intelligence that built a wall between law enforcement and intelligence that contributed directly to the FBI not being able to find 

the hijackers when they knew they were in the country but were 

not allowed to look for them because they were on the wrong side 

of the wall. 

I say that because this climate and the search for ever greater 

protections for civil liberties does have a cost, and we don’t know 

where that cost will be paid. That is why it seems to me that we 

need to be as careful as we can to ask the question what sorts of 

protections are there already. And I will confess, I was very surprised and a little troubled when I saw that initial metadata order. 

Only when I came to realize that the order allowed the collection, 

but not the actual searching of that data, and that the searches 

were so carefully circumscribed that only 300 were made in a particular year, did I realize that when you look at the two sets of orders together, that there are actually extraordinary limitations on 

the ability of anyone at NSA to look at metadata of any individual. 

I contrast that to the fact that there are hundreds of thousands of 

subpoenas issued every year for metadata by State and local law 

enforcement with far fewer guarantees of protection for that data. 

And then, finally, and I will close with this, the other cost that 

we are likely to pay here is that we are not the only audience for 

the debates that we are going through. It may feel like a family 

fight, but the neighbors are listening. 

And indeed, Europe has already made it clear that they intend 

to punish everybody who participated in these programs if they 

possibly can. They intend to try to restrict our intelligence gathering by going after the companies that only did their duty in responding to orders that were lawful under U.S. law. 

This is a fixed feature now of European public policy and diplomacy. It ignores the fact that, by and large, the U.S. record on protecting civil liberties and even this kind of data is much better. According to the Max Planck Institute, you are 100 times more likely 

to be surveilled by your own government if you live in the Netherlands or you live in Italy. You are 30 to 50 times more likely to 

be surveilled if you are a French or a German national than in the 

United States. 

Only in the United States and Japan are there limitations on 

simply volunteering information to Government if you happen to 

have this metadata. As long as you have a good reason, by and 

large, you can give it over, and certainly law enforcement would 

appear to be a good reason. 

And on this question of assembling a database of metadata, the 

Europeans don’t do that because they passed a law telling every 

one of their carriers, you assemble the database. You maintain it. 

And if law enforcement comes calling or if you want to volunteer 

the information, you will have it. 

We have never done that. We have never had a data retention 

law in the United States for civil liberties reasons, and that is one 
69 

of the reasons why we have ended up trying to collect this data and 

then imposing a set of limitations on when it is searched. 

I will reserve and answer any questions you may have at the end 

of the discussion. 

[The prepared statement of Mr. Baker follows:] 
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84 

Mr. GOODLATTE. Thank you, Mr. Baker. 

Mr. Jaffer, welcome. 

TESTIMONY OF JAMEEL JAFFER, 

AMERICAN CIVIL LIBERTIES UNION (ACLU) 

Mr. JAFFER. Thank you. Mr. Chairman, Mr. Ranking Member, 

Members of the Committee, on behalf of the ACLU, thanks for the 

invitation to testify today. 

Over the last 6 weeks, it has become clear that the NSA is engaged in far-reaching, intrusive, and unconstitutional surveillance 

of Americans’ communications. Under Section 215, the NSA is 

tracking every single phone call made by a resident of the United 

States—who they called, when they called them, for how long they 

spoke. Until recently, it was tracking ordinary Americans’ Internet 

activity as well. 

Under Section 702 and on the pretext of monitoring people outside the United States, the NSA is using Section 702 of FISA to 

build massive databases of Americans’ domestic and international 

communications, not just so-called metadata, but content as well. 

Those programs have been made possible by huge advances in the 

technology of surveillance, but in many respects, they resemble the 

generalized warrants, the generalized surveillance programs that 

led to the adoption of the Fourth Amendment more than 200 years 

ago. 

The FISA court orders resemble general warrants, albeit general 

warrants for the digital age. That the NSA is engaged in this kind 

of unconstitutional surveillance is the result of defects in the statute itself and in the current oversight system. 

FISA affords the Government sweeping power to monitor the 

communications of innocent people. Excessive secrecy has made 

congressional oversight difficult and public oversight impossible. 

Intelligence officials have repeatedly misled the public, Congress, 

and the courts about the nature and the scope of the Government 

surveillance activities, and structural features of the Foreign Intelligence Surveillance Court have prevented that court from serving 

as an effective guardian of constitutional rights. 

To say that the NSA’s activities present a grave danger to American democracy is not an overstatement. Thirty-six years ago, after 

conducting a comprehensive investigation into the intelligence 

abuses of the previous decades, the Church Committee warned that 

inadequate regulations on Government surveillance ‘‘threaten to 

undermine our democratic society and fundamentally alter its nature.’’ 

That warning should have even more resonance today than it did 

in 1976 because in recent decades, the NSA’s resources have 

grown, statutory and constitutional limitations have been steadily 

eroded, and the technology of surveillance has become exponentially more power and more intrusive. 

Because the problem that Congress confronts today has many 

roots, there is no single solution to it. But there are a number of 

things that Congress should do right away. 

It should amend Section 215 and 702 to expressly prohibit 

suspicionless or dragnet monitoring or tracking of Americans’ communications. It should require the executive to release basic infor-
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mation about the Government’s use of foreign intelligence surveillance authorities, including those relating to pen registers and national security letters. 

The executive should be required to disclose for each year how 

many times each of those provisions was used, how many individuals’ privacy was implicated by the Government’s use of each provision. And with respect to any dragnet, generalized, or bulk surveillance program, it should be required to disclose the types of information that were collected. 

Are they collecting medical records? Are they collecting educational records? Are they collecting firearms records? That should 

be disclosed to the American public. 

Congress should also require the publication of FISA court opinions that evaluate the meaning, scope, or constitutionality of the 

foreign intelligence laws. The ACLU recently filed a motion before 

the FISA court, arguing that the publication of those opinions is required by the First Amendment, but Congress need not wait for the 

FISA court to act. Congress has the authority and the obligation 

to ensure that Americans are not governed by a system of secret 

law. 

Finally, Congress, and this Committee in particular, should hold 

additional hearings to consider further amendments to FISA, including amendments to make FISA court proceedings more transparent. Congress should not be indifferent to the Government’s accumulation of vast quantities of sensitive information about Americans’ lives. This Committee in particular has a crucial role to play 

in ensuring that the Government’s efforts to protect the country 

don’t compromise the freedoms that make the country worth protecting. 

Thank you. 

[The prepared statement of Mr. Jaffer follows:] 
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Mr. GOODLATTE. Thank you, Mr. Jaffer. 

Mr. Bradbury, welcome. 

TESTIMONY OF STEVEN G. BRADBURY, DECHERT, LLP 

Mr. BRADBURY. Thank you, Mr. Chairman, Ranking Member 

Conyers, and distinguished Members of the Committee. 

I believe both of the recently disclosed NSA programs are critical 

to our national security, and I have every confidence that each is 

authorized by statute, consistent with the Constitution, and appropriately protective of privacy and civil liberties. 

The first program involves the acquisition of telephone metadata 

under a Section 215 business records order. This metadata consists 

only of tables of numbers indicating which phone numbers called 

which numbers and the time and duration of the calls. It doesn’t 

reveal any other subscriber information, and it doesn’t enable the 

Government to listen to anyone’s phone calls. There is no monitoring or tracking of phone calls. 

The Constitution does not require a warrant supported by probable cause to acquire this metadata. Courts have held that there 

isn’t a reasonable expectation of privacy in the phone numbers that 

are dialed. And the production of business records like these 

doesn’t involve a Fourth Amendment search. 

This acquisition is authorized under the terms of Section 215 because the use of the metadata is relevant to counterterrorism investigations. Acquiring a comprehensive database enables better 

analysis of the telephone links and calling patterns of terrorist suspects, which is often the only way to discover new phone numbers 

being used by terrorists. 

To connect the dots effectively requires the broadest set of telephone metadata. The same relevance standard applies in other contexts, such as administrative subpoenas and grand jury subpoenas, 

which, unlike Section 215, typically do not require court approval. 

While the metadata order is extraordinary in the amount of data 

acquired, it is also extraordinarily narrow and focused because of 

the strict limitations placed on accessing the data. There is no data 

mining or trolling through the database looking for suspicious patterns. 

By court order, the data can only be accessed when the Government has reasonable suspicion that a particular phone number is 

associated with a foreign terrorist organization. And then that 

number is tested against the database to discover its connections. 

If it appears to be a U.S. number, the necessary suspicion can’t be 

based solely on First Amendment protected activity. 

Because of this limited focus, only a tiny fraction of the total 

data has ever been reviewed by analysts. The database is kept segregated and is not accessed for any other purpose, and FISA requires the Government to follow procedures overseen by the court 

to minimize any unnecessary dissemination of U.S. numbers. 

Any data records older than 5 years are continually deleted from 

the system. The order must be reviewed and reapproved every 90 

days. And my understanding is that since 2006, 14 different Federal judges have approved this metadata order. 

Let me now turn to the surveillance program that targets foreign 

communications. This program is authorized under Section 702 of 
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FISA, and if we just track through the provisions of Section 702, 

we can see the outline of this program. With court approval, Section 702 authorizes a program of foreign-focused surveillance for 

periods of 1 year at a time. 

This authority may only be used if the surveillance does not, one, 

intentionally target any person of any nationality known to be located in the United States; two, target a person outside the U.S. 

if the purpose is to reverse target any particular person believed 

to be in the U.S.; three, intentionally target a U.S. person anywhere in the world; and four, intentionally acquire any communication as to which the sender and all recipients are known to be in 

the U.S. 

Section 702 mandates court approval of the targeting protocols 

and of minimization procedures to ensure that any information 

about U.S. persons that may be captured in this surveillance will 

not be retained or disseminated, except as necessary for foreign intelligence purposes. From everything that has been disclosed about 

this program, including the so-called PRISM Internet collection, I 

don’t think there is any reason to doubt that this foreign-targeted 

surveillance is just what Section 702 was designed to authorize. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Bradbury follows:] 
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Mr. GOODLATTE. Thank you, Mr. Bradbury. 

Ms. Martin, welcome. 

TESTIMONY OF KATE MARTIN, 

CENTER FOR NATIONAL SECURITY STUDIES 

Ms. MARTIN. Thank you, Mr. Chairman and Ranking Member 

Conyers and other distinguished Members of this Committee, for 

inviting me to testify today. 

I want to, first of all, thank the Committee for having asked 

some questions of the Government witnesses that I hoped the Committee would ask and congratulate you upon obtaining answers, at 

least in part, to some of those questions. 

I want to raise two overarching concerns today about these programs and note, first of all, that I think it does not make sense for 

the Committee to consider the 215 program and the 702 program 

separately and, instead, that they need to be looked upon as part 

of an overall set of foreign surveillance authorities that work together to allow the Government to collect and keep massive 

amounts of information about Americans and to do so in secret. 

And that that is the real nut of the problem. We have an incredibly complex set of laws governing those authorities and setting up 

safeguards, as this Committee is well aware, and we need to understand how those work together, where the holes are, and where the 

potential changes are. 

So I would urge the Committee, in going forward, to expand your 

oversight and your questions to look at not just 215 and 702, but 

all the FISA Authorities and not just as exercised by the National 

Security Agency, but equally significantly regarding how the information is shared between the NSA, the FBI, the DHS, and perhaps 

the White House or the NCTC as well. Those are equally critical 

questions for both civil liberties and for evaluating the effectiveness 

and the necessity of the programs. 

I agree with Mr. Jaffer and many of the Members here today 

that there is a lot to be concerned about, that we are seeing the 

unprecedented massive collection of information on Americans, the 

creation of secret data banks which are available for Government 

analysis, queries, and data mining by ever increasingly sophisticated computerized tools, and the dissemination of both raw information and the results of such analysis or data mining throughout 

the executive branch. 

I think that the question is whether or not these new activities 

by the Government have the potential to fundamentally change the 

relationship between citizens and the state. I think that was the 

concern that many Members of this Committee were raising today. 

In connection with the question of what is the harm here, I very 

much appreciate that the Administration and the NSA have been 

very detailed about the internal safeguards that they have created 

to ensure that no rogue employee or contractor can access the personal information of an individual American and misuse it. 

I do not believe, however, that that is the primary worry of the 

American people about these programs. I think, rather, the primary worry and the primary concern when FISA was first drafted 

was that the Government would succumb to the temptation to use 
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information that it has about individual Americans to chill political 

dissent, to challenge its political opponents, et cetera. 

I think this is one of those instances where when you discuss it 

in advance you can never believe that this would actually happen, 

but that when you look at history, it has happened too many times 

already in my own lifetime. 

Just a couple of specific comments about information which I believe would be crucial for this Committee’s consideration. First on 

questions about what kinds of authorities does the Government 

have under Section 215, one of the Members asked about the collection of Internet metadata. I would urge you to find out specifically 

whether or not under the Government’s current understanding of 

its legal authorities under 215, it could make an application for the 

collection of all Internet metadata on communications within the 

United States; whether or not it could make an application under 

215 for bulk collection of geolocation data; or for bulk collection of 

financial records or credit card records. 

I think it is also important to know when the Government makes 

one of these 300 queries to the 215 database, does that query require the database to do a chain-linked—a chained analysis? Not 

simply what numbers have been in contact with the first number, 

but to then do a chain-linked analysis? 

I know my time is up, and if I might just make one last comment? On the overall question of this is foreign intelligence, and 

traditionally it is done in secret; it is always done by government. 

There is a high cost when it is discussed in public. 

It is foreign intelligence when it is directed against foreigners 

and other governments overseas. We are talking about massive authorities for massive collections on Americans. And that may be 

foreign intelligence. It is also at the core of the concerns of the constitutional framers. I think that what we have seen about the cost 

of secrecy here is that—— 

Mr. GOODLATTE. Sorry. 

Ms. MARTIN. That is okay. 

[The prepared statement of Ms. Martin follows:] 
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Mr. GOODLATTE. We will have more opportunity to speak in just 

a moment. 

Ms. MARTIN. Thank you. 

Mr. GOODLATTE. But we will begin with the questioning, and I 

will start with Mr. Jaffer. If the acquisition of metadata is the type 

of mosaic of information that Sotomayor warned about in the Jones 

case, how would you limit the Government from collecting it? 

Mr. JAFFER. Well, one possibility would be to require the Government to get an individualized warrant for that information. And 

whatever the answer to that question is, I think that there have 

to be more safeguards than are in place right now. 

Even the Government seems to concede that its surveillance of 

this kind of information has to be reasonable under the Fourth 

Amendment, and I just don’t see you how can possibly justify the 

collection of everybody’s phone records on that standard. And I 

think many Members rightly pointed out that no other court has 

ever granted a subpoena, has ever upheld a subpoena that sought 

records on that scale. 

Mr. GOODLATTE. That is with regard to 215. One objection you 

have to 702 information collected is that information about Americans can be swept up in the search for foreign intelligence information. But isn’t that the case with any Title III wiretap? 

Mr. JAFFER. It is the case, and that is why the courts apply a 

reasonableness analysis. And all we have argued in the context of 

challenges to 702 is that the same reasonableness analysis has to 

be applied to the Government surveillance under that provision. 

And the Government in our constitutional challenges happen to 

have actually conceded that point. The only dispute was whether 

these procedures were, in fact, reasonable, and we don’t think they 

are. 

Mr. GOODLATTE. If the FBI is conducting a wiretap of a business 

that is also part of a criminal conspiracy, innocent third parties 

sometimes are involved, and they are monitored. That information 

is minimized to protect the people’s privacy. How is this different 

from Section 702 surveillance, which must be also minimized? 

Mr. JAFFER. Right. I think that is a good question. I think that 

one of our concerns is that the word ‘‘minimization’’ is being used 

as a kind of talisman as if when the Government invokes the prospect of minimization, that should end the discussion. But you have 

to look at what the Government means when it says minimization. 

And fortunately, we now have the Government’s minimization 

procedures under 702. They were released by the Guardian and by 

the Washington Post, and they allow us to evaluate the extent to 

which those procedures actually protect Americans’ privacy. And I 

think it is quite clear from the procedures that they don’t protect 

Americans’ privacy. They allow the Government to sweep up Americans’ communications, both domestic and international, to retain 

those communications forever to the extent that they include foreign intelligence information, a term that is defined very broadly 

under the statute. 

Even if the communications don’t contain foreign intelligence information, they can be retained for as long as 5 years. So these are 

procedures that don’t do very much to protect Americans’ privacy. 
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Mr. GOODLATTE. Let me turn to Mr. Baker and Mr. Bradbury 

and ask them if they want to comment on Mr. Jaffer’s observation 

and tell us why it is necessary to collect a broad set of metadata 

under Section 215. Does this help the Government connect the 

dots? 

Mr. BAKER. The difficulty the Government faced is that each telecommunications company keeps its records as it chooses, and they 

may maintain the records for a year or two, but they won’t keep 

it for a long time. And you can’t easily chain from one database to 

the next to find out the communications of the people who are 

linked to the person that you are investigating. 

And so, and to ask the companies to keep it for the Government’s 

convenience, to consolidate the database for the Government’s convenience is something that is really asking quite a bit of a private 

citizen just to help the Government do its job. So the Government 

did this and then acted—— 

Mr. GOODLATTE. But let me interject that depending upon the 

cost of the Government taking it and gathering it and holding it, 

we are asking all those phone companies’ customers, who are also 

taxpayers of the United States, to bear that burden. 

So I understand the problem with asking the phone companies 

to do it. But we also have to evaluate whether the benefits derived 

from this are justified by the costs of it. 

Mr. BAKER. That is a perfectly fair point, although the rate payers and the customers of the phone companies will pay for it in the 

end if it is a cost to the companies. But I agree with you that it 

is a cost to the United States. I think it is a cost that we bear because we are trying to protect all Americans from terrorism, and 

that it is fair for the U.S. Government to bear that cost. 

In the end, though, the searches can’t be done without a reasonable and articulable suspicion, which in practice has turned out to 

be much tougher than the standard for serving a subpoena on an 

individual telephone company. As I said, there are hundreds of 

thousands, perhaps a million such subpoenas. 

Mr. GOODLATTE. I understand. But that also leaves aside the 

question of whether the Congress intended to give the NSA the authority to gather the data in the fashion they did under the business record provision. 

But let me ask Mr. Bradbury another question, and he can comment on this as well, if he’d like. Mr. Jaffer’s testimony claims the 

Government is tracking all American phone calls under the 215 

program. Is this what is happening? 

Mr. BRADBURY. No. As I indicated, they are not tracking calls. 

They are not monitoring calls. The data sits in a database and is 

only accessed when there is a suspicious number, and you want to 

find the links and connections that that number has to other numbers. 

But you need to have the whole database, and getting the whole 

database is relevant to the counterterrorism investigation because 

you cannot do the kind of sophisticated link analysis that the NSA 

does without having a comprehensive set of data. 

It doesn’t have to be every single call record, but it has to be the 

largest collection you can get in order to effectively find all of those 

connections. And that is because of the technical way that they do 
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it, but it is a super valuable tool, and getting the database is relevant. 

It would be the same if we had a suspicion that a terrorist had 

come into the country, but we didn’t know exactly on what flight 

or where. And you could use 215 to get the flight manifests of all 

flights in and out of the country during a period of time, and you 

could put it in a database and you could query the person’s number, name to find out when he came in. It is relevant. 

Mr. GOODLATTE. You raised a good analogy, but my debate professor said analogy was the weakest form of argument. So are you 

suggesting that it would be appropriate if the airlines did not keep 

that data for a sufficient period of time, that it would be appropriate for the Government to tell all the airlines to provide them 

with all of the flight records of all American citizens so they could 

hold it in a database and check it when they needed to? 

Mr. BRADBURY. Well, it might be. It might be something that you 

have to do to find that particular flight that you need to protect—— 

Mr. GOODLATTE. Well, I wouldn’t argue that there might be occasions when that information would be useful, but it would have to 

be weighed against both the cost of storing the data—and that is 

just not, you know, computer capability, but also people to manage 

that—and the risks that are entailed by those people abusing that 

system, if that, indeed, occurs. 

Let me turn to Ms. Martin, however, and your testimony includes a number of suggestions for increasing the visibility into 

the—increasing visibility into the FISA programs. Which of these 

would you prioritize as a way to both preserve our national security 

efforts while also giving the public a better understanding of how 

the programs work? 

Ms. MARTIN. I think that it is key to obtain an understanding of 

the court’s understanding of its legal authorities, not just 215, but 

all of them and the Government’s interpretation and understanding 

of those legal authorities. I think it is also key, and the second 

thing that I would prioritize is getting a report from the Government how the existing FISA Authorities complement, overlap, and 

differ, and—and what they allow and what they don’t allow. 

I think, otherwise, we are going to be in the situation where we 

are talking about fixing 215 with regard to phone metadata without knowing how the Government is going to use national security 

letters or pen traps or 702 to get the same kind of data. So I would 

prioritize knowing the law and understanding how that works and 

the Government’s understanding of the legal authorities. And then 

after that, some idea—some idea, not the specifics—of the scope of 

the collection that is being done on Americans. 

Mr. GOODLATTE. Thank you very much. 

My time has expired. The Chair recognizes the gentleman from 

Michigan, the Ranking Member Mr. Conyers, for 5 minutes. 

Mr. CONYERS. Thank you, Chairman Goodlatte. 

This has been a very important hearing, and I wanted to begin 

by asking Professor Martin about the decision by Justice Alito, a 

5-4 decision as usual, responding who dismissed a number of 

groups for lack of standing. Reasoning that respondents can’t manufacture standing by choosing to make expenditures. 
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Is the harm alleged by, among others, Amnesty International 

and ACLU hypothetical, which was the basis of this conservative 

decision? 

Ms. MARTIN. Thank you for that question, Mr. Conyers. 

If I might answer it, that case, of course, was a challenge to the 

constitutionality of the 702 collection program. And one of the 

points that the Government made when it argued that the ACLU 

and Amnesty didn’t have the kind of particularized standing or 

showing of harm that the Constitution required was that others 

would be able to challenge the constitutionality of 702 collection 

and, in particular, individuals who were prosecuted using the fruits 

of such 702 collection. 

Well, now it turns out that the Government won’t even tell such 

people that it used the fruits of 702 collection in making a criminal 

case against them, and they are not given that opportunity to challenge the 702 collection. I do think that it is an appropriate question for the Congress to worry about wether you have designed a 

system that allows the Government to collect massive amounts of 

information about Americans, in secret, but somehow you haven’t 

set up any mechanism that the Supreme Court is going to recognize as granting standing to anybody to challenge the fact that information about them has been collected. That is a problem that 

Congress can solve and should solve. 

And that is a fundamental difference, of course, between foreign 

intelligence collection authorities that we are talking about today 

and the kind of criminal justice collection authorities that were discussed, which is that there is the possibility of an open, adversarial 

court challenge to criminal collection, which doesn’t exist in this 

context. 

Mr. CONYERS. Can I ask—— 

Ms. MARTIN. And to tell my colleagues—— 

Mr. CONYERS. Can I ask, Mr. Jaffer, in addition to your four recommendations, is there a way that we can reconcile our concern 

against terrorism and at the same time permit the largest usefulness of privacy possible? You know, after all, if it hadn’t been for 

a couple of people leaking, we wouldn’t have known about any of 

this, as far as I am concerned. 

Some say that somebody made a statement on the floor of the 

House. If you happen to have caught it, you could go back and 

track it. But I think I am more concerned about the collection legality than I am about the uses to which it is put. 

Mr. JAFFER. Well, I think that you ought to be concerned about 

the collection. The collection in the first instance implicates privacy. It has a real effect on privacy. That is where the privacy intrusion happens in the first instance. 

And it also has a chilling effect on activity protected under the 

First Amendment. It is the Government’s collection of that information that has the chilling effect. If you remember during the 1960’s 

and ’70’s, some State governments used subpoenas served on the 

NAACP as an effort to chill association with the NAACP. 

And it was just the acquisition of that information that was 

chilling, and those governments knew it. And—— 

Mr. CONYERS. And more chilling now than anything is the fact 

that they have got information through phone numbers, which can 
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easily be attached to names, of everybody in the country for at 

least 6 years. And that is probably the most disturbing aspect of 

this matter to me that I have been hearing today. 

Mr. JAFFER. Mr. Conyers, if I could just point out that even if 

you accept the Government’s frame here and focus only on the 

uses, I don’t think anybody should be misled by this 300 number, 

which makes it sound like this is a very targeted program. But if 

you think about the 300 number in relation to what was said on 

the previous panel about three hops, the first hop takes you to, say, 

100 people whose communications are pulled up. The second one 

takes you to 10,000, and the third one takes you to 1 million. 

And you do that 300 times. I think it is safe to say that every 

American’s communications have been pulled up at least once. 

Mr. CONYERS. Thank you very much. 

Mr. GOHMERT [presiding]. I will recognize myself now, and I appreciate your being here. 

It is intriguing, what we are talking about. We are talking about 

the privacy, the type of concerns that spawned a revolution back 

over 200 years ago. We hear all this information about the FISA 

courts, and that is the bulk of what you are being—you are talking 

about. 

Anybody care to just briefly tell us what happened before there 

was a FISA court? We know there have been national security secrets since the revolution itself. What happened before there was 

a FISA court to protect us from ourselves? 

Mr. JAFFER. It was left up to the executive. It was unilateral action by the executive in the area of foreign intelligence surveillance. And in fact—— 

Mr. GOHMERT. But here, we are talking about surveillance of 

Americans, in-country American citizens, and that is what I am 

talking about. If someone wanted to gather intelligence information 

about American citizens on American soil, normally, having been a 

judge and chief justice, it is my understanding, you went to a court. 

You might be requesting in camera review of documents. You 

might request that the court documents be sealed. But we were 

able to work pretty well getting court orders before there was ever 

a FISA court was my understanding. 

Mr. JAFFER. Actually, Mr. Chairman, prior to 1972, for any national security investigation, or many, they were done without 

court approval, without warrants. And the United States Supreme 

Court in the Keith case, 1972, said when it is a domestic security 

threat, there has to be a warrant. 

Left a footnote was not deciding foreign security threats. Even if 

it is a U.S. citizen, but associated with a foreign power that is 

threatening to the United States. And the lower courts consistently 

held that the President could conduct warrantless surveillance for 

foreign intelligence purposes even of U.S. citizens and that the 

fruits of that surveillance could later be used in a criminal prosecution, even if it hadn’t been supported by a warrant. 

That is what the lower courts held. Of course, that did lead to 

abuses because the executive is making determinations about what 

he thought was a foreign threat, and lines were crossed and abuses 

occurred. That is why Congress and the executive branch reached 

a compromise in 1978 and created the FISA process to involve Arti-
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cle III judges in the review and approval of those surveillance orders and also involve the Congress through the creation of the Special Intelligence Committees for oversight, which hadn’t occurred 

before. 

And so, we have this compromise situation where the branches 

have come together to involve all three branches. And of course, 

limitations were discovered after 9/11. A lot of debate occurred, and 

ultimately, Section 702 was passed in 2008 to enable a very broad 

programmatic order for foreign collection directed at non-U.S. persons outside the United States. 

Mr. GOHMERT. And that is a great distinction because I know in 

my freshman term, ’05 and ’06, what we were told is this is only 

for you have to be a foreign agent, a foreign individual. And as long 

as it is an American citizen here on American soil with distinction 

for American citizen where intelligence gathering in another country didn’t violate local law. There were all those distinctions being 

discussed. 

But even through all of that, my experience with conservative 

and liberal judges would have indicated that you wouldn’t have an 

order from a judge under our Constitution that requires specificity 

as to a place and information be gathered that would say something like this order from this court does. All call detail records between the United States and abroad or wholly within the United 

States, including local telephone calls. 

I think that pretty much covers everything. I see no specificity 

here. Oh, yes, just get all the records. And you should be comforted 

by the fact that you can get this stuff. It is okay. 

So I am just concerned. I have now seen the incredible abuse by 

the FISA court, in my opinion, and I am just wondering if we are 

better off going to a system where we don’t require a FISA court. 

There is not this Star Chamber. What would be another alternative? 

And that will be my last question. 

Ms. MARTIN. If I might, Mr. Gohmert? I think that the original 

conception of the FISA court was quite limited and perhaps quite 

useful, which was that it would act as a kind of usual court in 

issuing a warrant, right, which is always done ex parte. Because 

the search that the FISA court was going to authorize—which had 

to be particularized—had to be based on probable cause, was never 

going to be revealed, Congress set up secret procedures for doing 

that. 

But it was always recognized that what we are talking about is 

searches and seizures of Americans. And now the Government has 

taken the concept of a FISA court to kind of, in my view, put a fig 

leaf on a totally different kind of collection directed at Americans. 

It is not particularized. It is totally in secret. And that includes the 

702 program, which—— 

Mr. GOHMERT. Right. 

Ms. MARTIN. And so, you need to go back to the drawing board 

about are we really going to have unparticularized collection that 

is intended and does collect information about Americans? 

Mr. GOHMERT. Well, let me tell you we have got votes coming up 

in just a few minutes. And so, I want to get to people who want 

to ask questions. 
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But I would ask the witnesses if you have any proposals, if you 

could provide that in writing to us, any alternatives, any major 

changes, because I think this justifies major changes. 

And with that, who is next? Okay. Recognize the gentleman from 

New York, Mr. Nadler. 

Mr. NADLER. Thank you. 

Mr. Jaffer, various Administration officials have used comparison 

of Section 215 authority to what can be obtained through a grand 

jury subpoena, something we expressly include in the statute itself 

as a limiting principle. Are you aware of any examples where by 

virtue of grand jury subpoena, law enforcement has been able to 

engage in the type of ongoing bulk collection, what you described 

as dragnet collection of information done under Section 215? 

Mr. JAFFER. No, not even close. 

Mr. NADLER. Mr. Baker, are you aware of any such? 

Mr. BAKER. There are plenty of subpoenas for massively 

overbroad collections of data so that the Government can be comfortable that it has gone through everything that might be relevant. 

Mr. NADLER. There are subpoenas, grand jury subpoenas for, in 

effect, everything in the world without being specific, all metadata? 

Mr. BAKER. Addressed to a particular case or database, there are 

plenty of cases where a single database has been subpoenaed. 

Mr. NADLER. No, a single database. But has there ever been a 

grand jury subpoena that says let us see the outside of every postcard or letter sent in the United States? Or let us see the phone 

numbers of everybody who called anybody in the United States? 

Mr. BAKER. So if I could go back to an example that the Chairman mentioned, as a practical matter, every flight that comes into 

the United States, every travel reservation on that flight is provided to the Government by the carrier, every single one. 

Mr. NADLER. Has there ever been—has there been a subpoena 

for every flight record in the United States? 

Mr. BAKER. Every flight record coming into the United States, 

yes. 

Mr. NADLER. A subpoena for every flight record? 

Mr. BAKER. No. It is under a law passed by the United States 

Congress that says you must provide this information to the Government so it can search for terrorists. 

Mr. NADLER. You must provide the name of every individual on 

every flight? 

Mr. BAKER. Yes. That was passed in 2002, and it has been enforced. 

Mr. NADLER. And that is a subpoena? 

Mr. BAKER. And it has caught a lot of terrorists. 

Mr. NADLER. Excuse me. That was a subpoena? 

Mr. BAKER. No. 

Mr. NADLER. That is a law? 

Mr. BAKER. It was a law. 

Mr. NADLER. Well, that is a little different from a subpoena. 

Okay. Mr. Bradbury, you talk about how the metadata that is acquired and kept under this program can be queried when there is 

responsible suspicion, as if that meets the statute. The statute 
127 

talks about collection. You seem to be talking about query. There 

is a difference between collection and query. 

Mr. Jaffer, let me ask you this. Does the Fourth Amendment talk 

to collection or to queries? 

Mr. JAFFER. Collection. 

Mr. NADLER. Collections. So a broad—okay. Let me go to the 

next question because I have a bunch quickly. 

Mr. Jaffer, you talked—Mr. Baker, rather, you talked about Section 702, as the discussion of Section 702 has really hurt us because it has told the Europeans and everybody else what we are 

doing for foreigners. But nothing, as I think you point out in your 

testimony, too, nothing that we have learned about Section 702— 

I can’t think of anything we have learned about Section 702 from 

Mr. Snowden—or however you pronounce his name—that wasn’t 

included in the debate in 2008 on Section 702, when we knew we 

were going to be collecting across the board on everybody. 

And the question in that debate was—and I thought the resolution of that debate was inadequate, which is why I voted against 

it—how were we going to protect Americans against being caught 

up? And this is what we have been talking about. 

But the assumption there was that foreigners have no constitutional right and no privacy rights. And we can get all the information on them anyway. So how is this information now harmful in 

a way that the congressional debate wasn’t? 

Mr. BAKER. I think that the congressional debate seeded what we 

are now seeing. It is a cost. It is a cost of having the debate we 

are having, and my point here is that Europe will extract that cost 

from companies that did nothing but their obligation under the 

law. 

Mr. NADLER. But they would have extracted that cost just because of the congressional debate, if they were paying attention. 

Mr. BAKER. What I say is that this Congress and this Administration has an obligation to stand between those companies 

and—— 

Mr. NADLER. That is a separate discussion, and that may be. 

But—okay. Ms. Martin, how can we—how can Congress solve the 

problem? We have a basic problem. 

Every challenge to abuse of constitutional rights by the Bush administration and the Obama administration has been met in the 

same way. Either the use of the state secrets doctrine to say you 

can’t go to court on that. The subject matter of the discussion is 

a state secret. Therefore, move to dismiss the case ab initio. Or you 

have no standing because you cannot prove that you personally 

were harmed by this. 

Now Mr. Snowden may have done a public service in giving some 

people standing by proving that they were harmed by this because 

anyone who is a Verizon subscriber arguably can now go into court 

and say that. How can we deal with these two problems that an 

Administration, any Administration can violate constitutional 

rights from here to kingdom come, subject to no court review because of either the state secrets doctrine or the standing problems 

because they don’t admit what they are doing in the first place. It 

is secret. 
128 

It is secret what we are doing to you. Therefore, you have no 

standing because you can’t prove what we are doing to you. 

Mr. GOHMERT. The time has expired, but you may answer briefly. 

Ms. MARTIN. Well, I think one key way of doing it, which is outside the court system, is for the Congress to insist that the Administration disclose all that information. The Government then won’t 

be able to claim state secrets because it has disclosed the information. 

Mr. NADLER. Disclose what information? 

Ms. MARTIN. Disclose the information about what it has done 

and who it has done it to, right? And something like that did happen and is happening in the context of the violations of the laws 

against torture, and that helps in creating a consensus that we 

know the Government violated the law. 

We have some kind of public debate about what the Government 

shouldn’t do, and whether or not we end up with an individual 

remedy in the court is a question that I would be glad to think 

about some more. I know there are now five lawsuits seeking individual remedies that have a better chance than they did before, but 

they all depend upon public disclosure by the Administration of information. 

Mr. NADLER. Or by Mr. Snowden or somebody else. 

Ms. MARTIN. Well, that is more difficult because then the Administration claims state secrets. 

Mr. GOHMERT. We are going to have to—in order to get the other 

two Democrats and one Republican left, we are going to need to 

move on. But I would ask if you have additional information, if you 

would prove that in writing in response to that question. 

And now at this time, we yield 5 minutes to the gentleman from 

Idaho, Mr. Labrador. 

Mr. LABRADOR. Thank you, Mr. Chairman. 

Mr. Jaffer, I am trying to figure out how we got from Smith v. 

Maryland to the moment that we are at today. Can you try to explain to me what exactly maybe the proponents of these laws and 

the interpretation of these laws are trying to say because I am not 

following Smith v. Maryland very well. I have read it a couple of 

times. 

Mr. JAFFER. Right. 

Mr. LABRADOR. But I am not sure that you can get to the collection of metadata all over the United States. 

Mr. JAFFER. Well, I think that there is a vast chasm between 

Smith and the kind of surveillance that is going on now. Smith was 

a case about a specific criminal investigation. It was a pen register 

installed on one person’s phone for 2 days. 

We are now talking about 7 years of surveillance of every American’s phone calls. So I don’t think it is a serious argument to say 

that Smith justifies what the Government is doing now. I think 

that the more relevant case is Jones, which was decided just last 

year. A 9-0 court found that the tracking of individuals’ location 

over the long term constituted a search under the Fourth Amendment, and even in Jones, the surveillance was narrower and 

shallower than the kind of surveillance we are talking about today. 

Mr. LABRADOR. And they said that the tracking of individuals 

over a long period of time resulted in a search and seizure. Can you 
129 

explain why they said that? Because there is now an argument 

that collecting all this data actually gives you very personal information about the individual. 

Mr. JAFFER. That is right. Sometimes we talk about metadata as 

if it is less sensitive, and that is not really true. Using this kind 

of metadata, in Jones, for example, the court noted that you could, 

just tracking somebody’s location over a long period of time, you 

could draw all sorts of accurate conclusions about their medical history, about their intimate relationships, about their professional 

life, about their personal life. 

And the same is true of phone calls. If the Government has access to your call records over a long period of time, the Government 

can draw all those conclusions in the same way. 

Now that is not to say that the Government should never have 

access to the phone records. There are circumstances in which the 

Government has to have that access, but we just want to make 

sure that that is limited to cases, specific cases in which the call 

records are, in fact, relevant to an investigation. 

Mr. LABRADOR. And in Smith v. Maryland, there was a specific 

reason why it was relevant. Correct? 

Mr. JAFFER. That is correct. Even in Jones, there was that specificity. 

Mr. LABRADOR. Okay. So because what concerns me is that, I 

think as a Government official, as a legislator, I would like to stop 

gang membership, for example, or I would like to stop child pornography, or I would like to stop bank robberies. And I could maybe 

pass a law that would require the Government to collect 

everybody’s data, right, everybody’s metadata so we can stop those 

crimes. What do you think about that, Ms. Martin? 

Ms. MARTIN. I think that is the proven solution of countries like 

the Soviet Union and China. 

Mr. LABRADOR. Exactly. 

Ms. MARTIN. I mean, and I think there have actually been studies showing that you can stop crime by that kind of government 

surveillance and collection. 

Mr. LABRADOR. So, Mr. Baker, what is the difference? I want to 

stop all these crimes, and I would think that everybody in this 

Congress would think that that would be inappropriate for me to 

pass a law that would allow me to collect all the metadata of every 

American so I could stop child pornography. 

What is the difference between that and what is happening here 

in this instance? 

Mr. BAKER. We are responding, in the case of the 215 programs, 

to the fact that there is a well-organized, offshore conspiracy seeking to carry out attacks on us. 

Mr. LABRADOR. I understand that, but—and I agree with that. 

And that is why maybe I don’t have as much problem with the 702 

program. 

But you are collecting the data or the Government is collecting 

the data of American citizens and saying that it may become relevant after we collect it. Why not just collect the data of every 

American because it might become relevant in a child pornography 

case later? 
130 

Mr. BAKER. All of these searches, there is really two issues here. 

First, is it a search at all? And Smith suggests it isn’t. And if it 

is a search, is it reasonable? And that depends in part on the nature of the justification and the problem that you are trying to 

solve. 

In this case, we are trying to solve a problem that requires classified tools and is a national security threat. That is different from 

trying to stop bank robberies, frankly. 

Mr. LABRADOR. Well, and I just find it fascinating that the author of the PATRIOT Act and most of the Members of Congress 

who voted for the PATRIOT Act had no idea that the Government 

would go to these lengths to collect data. And I hope that we can 

continue to have these hearings. 

Thank you very much for being here. 

Mr. GOHMERT. The time has expired. Thank you very much. 

Mr. LABRADOR. I yield back my time. 

Mr. GOHMERT. I yield to the gentleman from Virginia, Mr. Scott, 

for 5 minutes. 

Mr. SCOTT. Thank you, Mr. Chairman. 

I know we are trying to get three Members in in this very short 

period of time. So let me just pose a question for Mr. Jaffer real 

quick. 

I am interested in what you can do with the data after you have 

gotten it. There is a real question as to whether you have the legal 

authority to get all the phone calls. But after you have got it, we 

found out in a DNA case that if you get someone’s DNA legally and 

you find out it is not them, you can still run that DNA through the 

database without any probable cause, no articulable suspicion, anything. You have the data, and you can use it. 

What is the limitation on the data after you have acquired it? 

Now they say you have to have articulable suspicion to query the 

data that you have obtained. But the Section 215 doesn’t require 

any such limitation. It just tells you to describe what you are getting. This seems to be a little gratuitous policy, not a limitation by 

statute. 

And so, can you say a word about where the limitation is after 

you have gotten the data what you can do with it? 

Mr. JAFFER. Well, on the 215 program, we don’t have the Government’s minimization procedures. They haven’t been released. 

Mr. SCOTT. Well, let me just—and the minimization procedure 

specifically has—the witness before was a little murky on this— 

has—specifically has a criminal justice exception. So running a 

criminal justice investigation with data you now have can be done 

without articulable suspicion or probable cause or anything. You 

just go look to see, as the gentleman was suggesting, who has been 

committing gang crimes. 

You got a gang member, you can spin his little thing around to 

find out who he is talking to. Is there a limitation on what you can 

do after you have gotten it? 

Mr. JAFFER. No, almost certainly not. And we know that that the 

limitations are very weak because we have seen the 702 minimization procedures. Those were disclosed. 

And if they are any guide, I think it is safe to assume that the 

215 procedures don’t protect Americans’ privacy. 
131 

Mr. SCOTT. Now if you were running a criminal investigation 

without probable cause by virtue of getting information in the 

hands of the FBI, and we have removed that firewall that used to 

be there, what would be the sanction against improperly using that 

information? Would the exclusionary rule kick in? 

Mr. JAFFER. Well, I don’t think we will ever know because the 

Government doesn’t notify criminal defendants that it is using 

these kinds of surveillance programs. 

Mr. SCOTT. Would fruit of a poison tree kick in? 

Mr. JAFFER. Well, it would if the Government disclosed. But it 

doesn’t disclose. It keeps it secret from criminal defendants, and 

this is one of the things that we have been very frustrated with is 

that the Government told the Supreme Court that criminal defendants would be notified when information was introduced against 

them derived from these programs. And it is not, in fact, giving 

that kind of notice. 

Mr. SCOTT. Thank you. 

Mr. Chairman, as a courtesy to my colleagues, I will yield back 

at this time. 

Mr. GOHMERT. Thank the gentleman from Virginia. 

At this time, I will yield to Mr. Johnson for 5 minutes. 

Ms. JACKSON LEE. Mr.—excuse me, Mr. Gohmert. This is regular 

order. 

Mr. GOHMERT. Okay. Well, I was just going by the list that the 

clerk gave me here. 

Ms. JACKSON LEE. The list goes from the beginning of the Committee. I think Mr. Johnson knows. 

Thank you. 

Mr. GOHMERT. Exactly. All right. Then we will yield 5 minutes 

to my friend from Texas, Ms. Jackson Lee. 

Ms. JACKSON LEE. I thank you very much. 

Let me just say that this has been not eye-opening, but it raises 

more questions than probably it gives answers. And I think I want 

to start immediately with the question, Mr. Jaffer, on the 215 PATRIOT Act, which grants the FBI broad authority, as we have seen 

in the previous hearing and what we have read, and could put and 

does put civil liberties at risk. From your perspective, what danger 

might occur or what would happen if we did not renew Section 

215? 

Mr. JAFFER. Well, I think that is a good question to ask the Government. So far, they haven’t been able to explain why the dragnet 

surveillance under this provision is actually necessary. They 

haven’t been able to point to cases in which this particular surveillance program was crucial. I think it is a good question to put to 

them. 

But I would just say that while I think that your concern about 

215 is totally justified, I think that the Committee ought to be concerned about 702 as well. And the Government keeps emphasizing 

that this is a program directed at people abroad, and that is true. 

But in the course of surveillance of people abroad, the Government 

is building huge databases of Americans’ phone calls, not just the 

metadata. But the—— 
132 

Ms. JACKSON LEE. So you are saying that reverse targeting is occurring, even though language put in the bill to not have that 

occur? 

Mr. JAFFER. I actually am not saying that the Government is violating the statute. I am saying that they are using the statute precisely as it was designed to be used, but the statute allows them 

to gather Americans’ communications so long as they are not targeting a specific American. 

Ms. JACKSON LEE. So to hold them until they believe something 

rises to the top? 

Mr. JAFFER. That is right. 

Ms. JACKSON LEE. So it is sort of like storing in your Internet 

or storing pictures in your iPhone or something of the sort? 

Mr. JAFFER. That is exactly right. 

Ms. JACKSON LEE. Let me to go Mr. Baker. You sat before Homeland Security a number of years. Thank you for your service. 

Thank all of you for your service. But you made the point that on 

your blog, that you thought that the FBI could have caught the 

people on 9/11, but there was too liberal—civil liberties was too 

much in the way. 

What are you suggesting when the idea of 9/11 was, one, these 

were foreign nationals. So the FBI had opportunity to deal with 

them in the construct of our civil liberties, and it was basically connecting the dots or not finding out that guys were learning to take 

off and not land in a plane training place down in Florida. What 

civil liberties need to be violated in order to have protected us from 

9/11? 

Mr. BAKER. The problem is that there were two al-Qaeda 

operatives in the country for 2 weeks. We knew—the FBI, the CIA 

all knew they were here, but the FBI’s task force that was organized for the Cole bombing, as I remember, was not allowed to go 

looking for them, even though they had by far the most resources 

of anybody to find them. 

And the reason they were not allowed to do it was because the 

FISA court had made up a doctrine that led to the wall that said 

we are going to keep law enforcement over here and intelligence 

over here and not allow them to talk. And out of fear that the FISA 

court would punish them for talking and for going to look for these 

guys, the Cole task force stood down. 

We lost our best chance to catch those guys at that time, and it 

was because the FISA court was so aggressively enforcing a doctrine that, frankly, it shouldn’t have adopted in the first place, but 

which it adopted pretty clearly for civil liberties reasons. 

Ms. JACKSON LEE. Well, let me ask your comment on that. 

Ms. MARTIN. I think the record is much more complex. There 

were many times that the Government dropped the ball when it 

might have stopped 9/11, and most of them had absolutely nothing 

to do with the law. The CIA, for example, knew for many months 

the names of the hijackers. They knew that they wanted to carry 

out an attack against the United States. They knew that they had 

gotten visas, and they didn’t tell the FBI to go find those people 

inside the United States. 

And the wall had nothing to do with preventing the CIA from 

telling the FBI to go find known al-Qaeda terrorists in the United 
133 

States. The record is just much more complicated than Mr. Baker 

is making it out. 

Ms. JACKSON LEE. Well, let me just finish. So let me just make 

this comment. Maybe I will be short of the red light. 

One, I maintain that we have too many contractors unknown and 

unbeknownst in the intelligence community. I thank them for their 

service, but they need to rein in this rampant proliferation of contracts, even though the Government tried to defend its satellites as 

this, and really have a profound staff that is here in the United 

States Government. 

The last point is the FISA court can stand a lot of review. One, 

I think there should be something about the balance of Democratic 

appointed judges and Republican. But I also think the release of 

opinions should be something that we should be able to allow to 

the public and, therefore, find a way to rein in all of this. 

I yield back. 

Mr. GOHMERT. Thank you. 

We have 41⁄2 minutes left—4 minutes, 20 seconds left in the vote. 

So I yield to the gentleman for such time. Mr. Johnson? 

Mr. JOHNSON. I will be brief. Thank you, Mr. Chairman. 

Section 702, collecting foreign data, intelligence data, metadata 

content of communications, and so forth. Is that correct? 

Mr. JAFFER. Not quite. Section 702 is surveillance directed at 

people outside the United States, but it is surveillance of Americans’ communications with those people outside the United States. 

Mr. JOHNSON. Yes, and collection of the scope you don’t disagree 

with. In other words, content metadata? 

Mr. JAFFER. That is right. 

Mr. JOHNSON. And minimalization procedures in place that perhaps may not be as stringent as they should. Perhaps. I am not 

saying that that is the case or not. 

But with respect to the data collected under 702 of Americans 

that are just incidentally caught up in foreign-to-foreign communications or a foreign target that is communicating with someone 

in the U.S., who owns that data? Is it the person who initiates the 

call? Is it the person who accepts the call? Or is it both or—— 

Mr. JAFFER. My guess is—— 

Mr. JOHNSON. Or is it the provider, the service provider who 

owns the data? 

Mr. JAFFER. I think that Americans have a reasonable expectation of privacy in their international communications. 

Mr. JOHNSON. Have there been court cases specifically on that 

point? 

Mr. JAFFER. Yes. On the content of communications, yes. 

Mr. JOHNSON. Yes. Okay. So now, I would submit that when you 

are talking about surveillance, when you look at the definition of 

the word ‘‘surveillance,’’ it includes keeping a close watch on people 

or things. And so, you can surveil a thing. That thing may not have 

a constitutional right, but a person certainly does. 

I think we should make or I think we should be prepared to distinguish between surveillance, what kind of surveillance we are 

talking about. That is a term that kind of gets everybody excited. 

That is about really all I have to say. Anybody got any comments 

about that? 
134 

[No response.] 

Mr. JOHNSON. I will yield back, Mr. Chairman. 

Mr. GOHMERT. The time has been yielded back. And at this time, 

this concludes today’s hearing. 

Thanks to all of our witnesses for attending. We know it has 

been a long day for you, and we appreciate you bearing with it. It 

is an important subject. It is only our future, our security, and our 

privacy. 

So thank you, and we look forward to your comments that we anticipate receiving back in writing, things that you wished you had 

said or wanted to say, and to direct us. So thank you very much. 

Without objection, all Members will have 5 legislative days to 

submit additional written questions for the witnesses or additional 

materials for the record. 

This hearing is now adjourned. 

[Whereupon, at 2:32 p.m., the Committee was adjourned.] 
(135) 

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD
136 

*The Committee had not received a response to these questions at the time this hearing 

record was finalized and submitted for printing on December 12, 2013. 

Questions for the Record submitted to James Cole, United States Department of Justice; Robert S. Litt, Office of Director of National Intelligence; 

John C. Inglis, National Security Agency; and Stephanie Douglas, FBI National Security Branch* 
137 

f 
138 

Response to Questions from the Hearing from Stewart A. Baker, 

Steptoe & Johnson, LLP 

f 
139 

Response to Questions for the Record from Jameel Jaffer, 

American Civil Liberties Union (ACLU) 
140 

f 
141 

Response to Questions from the Hearing and for the Record 

from Kate Martin, Center for National Security Studies 
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143 
144 
145 
146 
147 
148 
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